FORM 10-K
CYTRX CORP - CYTR
Filed: April 01, 2008 (period: December 31, 2007)
Annual report which provides a comprehensive overview of the company for the past year
Table of Contents
10-K - FORM 10-K
PART I
Item 1.
Item 1A.
Item 2.
Item 3.
PART II
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9A.
PART III
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
PART IV
BUSINESS
RISK FACTORS
PROPERTIES
LEGAL PROCEEDINGS
MARKET FOR REGISTRANT S COMMON EQUITY, RELATED
STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY
SECURITIES
SELECTED FINANCIAL DATA
MANAGEMENT S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CONTROLS AND PROCEDURES
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE
GOVERNANCE
EXECUTIVE COMPENSATION
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT AND RELATED STOCKHOLDER MATTERS
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
PRINCIPAL ACCOUNTANT FEES AND SERVICES
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Item 15.
SIGNATURES
INDEX TO FINANCIAL STATEMENTS
EX-3.1 (EXHIBIT 3.1)
EX-3.2 (EXHIBIT 3.2)
EX-21.1 (EXHIBIT 21.1)
EX-23.1 (EXHIBIT 23.1)
EX-31.1 (EXHIBIT 31.1)
EX-31.2 (EXHIBIT 31.2)
EX-32.1 (EXHIBIT 32.1)
EX-32.2 (EXHIBIT 32.2)
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
(Mark One)
�
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2007
or
�
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 0-15327
CytRx Corporation
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
11726 San Vicente Blvd, Suite 650,
Los Angeles, California
(Address of principal executive offices)
58-1642740
(I.R.S. Employer
Identification No.)
90049
(Zip Code)
Registrant’s telephone number, including area code: (310) 826-5648
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Stock, $0.001 par value per share
Series A Junior Participating Preferred Stock Purchase
Rights
Name of exchange on which registered
The NASDAQ Stock Market LLC
Securities Registered Pursuant to Section 12(g) of the Act:
None
Indicate by check mark with the Registrant is a well-known seasoned issuer (as defined in Securities Act Rule 405). Yes � No �
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934. Yes � No �
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months and (2) has been subject to such filing requirements for the past 90 days.
Yes � No �
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will
not be contained, to the best of the Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in
Part III of this Form 10-K or any amendment to this Form 10-K. �
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):
Source: CYTRX CORP, 10-K, April 01, 2008
Large accelerated filer �
Accelerated filer �
Non-accelerated filer �
Smaller reporting company �
(Do not check if a smaller reporting company)
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 2b-2 of the Act). Yes � No �
The aggregate market value of the Registrant’s common stock held by non-affiliates on June 29, 2007, the last business day of the
Registrant’s most recently completed second fiscal quarter, was approximately $260.2 million. On March 28, 2008, there were
outstanding 90,743,553 shares of the Registrant’s common stock, exclusive of treasury shares.
Source: CYTRX CORP, 10-K, April 01, 2008
CYTRX CORPORATION
2007 ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
“SAFE HARBOR” STATEMENT
PART I
Item 1. BUSINESS
Item 1A. RISK FACTORS
Item 2. PROPERTIES
Item 3. LEGAL PROCEEDINGS
PART II
Item 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND
ISSUER PURCHASES OF EQUITY SECURITIES
Item 6. SELECTED FINANCIAL DATA
Item 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Item 9A. CONTROLS AND PROCEDURES
PART III
Item 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Item 11. EXECUTIVE COMPENSATION
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
Item 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
PART IV
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
SIGNATURES
EXHIBIT 3.1
EXHIBIT 3.2
EXHIBIT 21.1
EXHIBIT 23.1
EXHIBIT 31.1
EXHIBIT 31.2
EXHIBIT 32.1
EXHIBIT 32.2
2
3
4
12
23
23
24
26
27
38
39
39
41
43
57
58
59
60
64
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
“SAFE HARBOR” STATEMENT
Some of the information contained in this Annual Report may include forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934,
as amended, or the Exchange Act. We base these forward-looking statements on our current views with respect to our research and
development activities, business strategy, business plan, financial performance and other matters, both with respect to us, specifically,
and the biotechnology sector, in general. 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, but the absence of these words does not
necessarily mean that a statement is not forward-looking.
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 in the sections entitled “Business,” “Risk Factors,” “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 this Annual Report, all of which you should review carefully. Please consider our forward-looking
statements in light of those risks as you read this Annual Report. We undertake no obligation to publicly update or review any
forward-looking statement, whether as a result of new information, future developments or otherwise, except as required by law.
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 the cautionary language above. You should consider
carefully all of the factors set forth or referred to in this Annual Report that could cause actual results to differ.
3
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Item 1. BUSINESS
PART I
In this Annual Report, we sometimes refer to CytRx Corporation as “CytRx” and to our former subsidiary, RXi Pharmaceuticals
Corporation, as “RXi.” References in this Annual Report to the “company,” “we,” “us” or “our” refer to CytRx, alone, unless
otherwise indicated.
COMPANY OVERVIEW
We are a clinical-stage biopharmaceutical company engaged in developing human therapeutic products based primarily upon our
small-molecule molecular chaperone amplification technology. Molecular chaperone proteins occur normally in human cells and are
key components of the body’s defenses against potentially toxic mis-folded cellular proteins. Since damaged toxic proteins called
aggregates are thought to play a role in many diseases, we believe that amplification of molecular chaperone proteins could have
therapeutic efficacy for a broad range of indications. Currently, we are using our chaperone amplification technology to develop
treatments for neurodegenerative disorders and diabetic complications.
In December 2007, we began enrolling patients in our Phase IIb efficacy clinical trial of our lead product candidate, arimoclomol,
for amyotrophic lateral sclerosis, which is commonly known as ALS, or Lou Gehrig’s disease. That Phase IIb clinical trial was placed
on clinical hold by the U.S. Food and Drug Administration, or FDA, in January 2008. Based on written correspondence we received
from the FDA, their decision pertained to a previously completed animal toxicology study in rats and was not related to data generated
from any human studies with arimoclomol. Subject to our ability to provide satisfactory information to the FDA to remove the clinical
hold, we currently anticipate that data regarding the primary efficacy endpoint of this trial will be available approximately 18 months
following the resumption of the trial. The results from our completed Phase IIa clinical trial and open-label trial extension indicated
that arimoclomol was safe and well tolerated by ALS patients. Based on preliminary discussions with the FDA, we plan to conduct a
second efficacy trial of arimoclomol for ALS, possibly overlapping with the Phase IIb efficacy trial, to provide additional data to
support a possible approval decision by the FDA. Arimoclomol for treating ALS has received Orphan Drug and Fast Track
designation from the FDA and orphan medicinal product status from the European Medicines Agency.
The results from preclinical efficacy studies completed by us in April 2007 indicated that arimoclomol accelerated recovery time,
and improved recovery, in experimental animal models of stroke, even when administered as long as 48 hours after onset. We are
currently planning to commence in the second half of 2008 a Phase II clinical trial of arimoclomol for stroke recovery, subject to FDA
clearance.
Iroxanadine, our second small-molecule product candidate, has completed Phase I clinical trials. The results from the Phase I trials
indicated that orally-administered iroxanadine was safe and well tolerated in healthy volunteers. The results from an open-label Phase
II clinical trial in patients with chronic high blood pressure indicated that oral iroxanadine improved the functioning of endothelial
cells that line the interior of blood vessels and are thought to be damaged by conditions of stress such as chronic high blood pressure
and diabetes. Animal studies completed by us in May 2007 indicated that iroxanadine accelerated the healing of skin wounds in
diabetic animals. Subject to FDA clearance, we plan to initiate a Phase II clinical trial of oral iroxanadine for diabetic ulcers in the
second half of 2008.
We also own several other small-molecule compounds that we believe may amplify molecular chaperone proteins in human cells.
In July 2007, we opened a research and development facility in San Diego, California, to serve as a dedicated laboratory to accelerate
development of our pipeline of molecular chaperone amplification product candidates.
Our Molecular Chaperone Amplification Platform
The synthesis of proteins is a normal part of essential human cell activity. In order to function normally, proteins must fold into
particular three-dimensional shapes. In response to trauma or other stressful conditions, proteins can fold improperly, resulting in the
aggregation of mis-folded proteins that can be toxic to the cell and cause or contribute to disease. It is believed, for example, that
mis-folding and aggregation of certain mutated forms of a particular protein known as superoxide dismutase 1, or SOD1, leads to the
death of motor neurons that causes certain forms of ALS. Similar protein aggregates also are present in motor neurons of all other
ALS patients.
4
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
In nature, the cell has developed molecular chaperone proteins to respond to mis-folded proteins. As a cell comes under stress,
proteins begin to mis-fold into toxic shapes, and the cell responds by increasing the synthesis of molecular chaperone proteins that
detect the mis-folded proteins and refold them into the appropriate, non-toxic shape, or identify, or tag, the toxic protein for
destruction by the cell.
By boosting the cell’s own molecular chaperone response to higher levels, we believe that the progression of chronic diseases such
as ALS that are thought to be caused by protein mis-folding may be slowed or halted, or perhaps even reversed. In in-vitro studies, for
example, mammalian cells engineered to have increased amounts of molecular chaperone proteins showed resistance to a variety of
otherwise lethal stresses. Increased molecular chaperone proteins also significantly extended the lifespan of mice with spinal and
bulbar muscular atrophy, a disease with a pathology believed to be similar to ALS.
Some potential drug candidates have been reported in scientific papers as activating molecular chaperone expression, but they
appear to activate the response of molecular chaperone proteins in all cells, including normal cells. We are not aware of another
pharmaceutical company engaged in developing small-molecule amplifiers of molecular chaperone proteins that are activated only in
stressed or diseased cells.
OUR PRODUCT CANDIDATE PIPELINE
The following tables summarize the current pipeline of our product candidates:
Technology
Molecular
chaperone
amplification
Product
candidate
Arimoclomol
Arimoclomol
Iroxanadine
CYT-092
Indication
ALS (Lou Gehrig’s disease)
Stroke recovery
Diabetic foot ulcers
Multiple indications
Stage of
development
Phase IIb
Phase II (2H 2008)
Phase II (2H 2008)
Preclinical
OUR CLINICAL DEVELOPMENT PROGRAMS
Our clinical development programs consist of our ongoing efforts to develop arimoclomol for ALS and stroke recovery and to
develop iroxanadine for diabetic ulcers.
Arimoclomol. Arimoclomol is an orally-administered small-molecule product candidate that we believe functions by stimulating a
normal cellular protein repair pathway by amplifying activated molecular chaperone proteins implicated in neurological disorders.
Arimoclomol for the treatment of ALS. ALS, or Lou Gehrig’s disease, is a debilitating and ultimately deadly disease involving the
progressive degeneration of motor neurons believed to be caused by toxic mis-folding of proteins. According to the ALS Association,
approximately 30,000 people in the United States are living with ALS and 5,600 new cases are diagnosed each year. Worldwide, an
estimated 120,000 people are living with ALS. According to the ALS Survival Guide, 50% of ALS patients die within 18 months of
diagnosis and 80% die within five years of diagnosis.
The following is a summary of our clinical development of arimoclomol for treating ALS:
•
•
•
•
in July 2006, we completed an 84-patient, multi-center, double-blind, placebo-controlled, multi-dose Phase IIa clinical trial of
safety and tolerability of arimoclomol in volunteers with ALS, which we refer to as the Phase IIa trial;
in May 2007, we completed an open-label extension of the Phase IIa trial in approximately 70 ALS patients from the trial who
were administered the highest investigational dose (100 mg three times daily) of arimoclomol for an additional six months;
in June 2007, we completed a multiple ascending-dose clinical trial of safety and tolerability involving 40 healthy volunteers;
in November 2007, we completed a 28-day safety clinical trial with 400 mg of arimoclomol three times daily involving 16
healthy volunteers; and
5
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
•
in December 2007, we initiated patient screening in a double blind, placebo-controlled Phase IIb clinical study. In this trial,
we expect to enroll 390 ALS patients at 30 to 40 clinical sites in the United States and Canada. The primary purpose of this
trial is to evaluate the safety and efficacy of a 400 mg dose of arimoclomol administered orally three times daily. The Phase
IIb clinical trial was placed on clinical hold by the FDA in January 2008. Based on written correspondence we received from
the FDA, their decision pertained to a previously completed animal toxicology study in rats and was not related to data
generated from any human studies with arimoclomol.
Phase IIa clinical trial. Participants in the Phase IIa clinical trial of arimoclomol were administered either a placebo capsule, or one
of three dosage levels of arimoclomol capsules, three times daily for a period of 12 weeks, immediately followed by a one-month
period without the drug. The primary endpoints of the Phase IIa trial were safety and tolerability. Secondary endpoints included a
preliminary evaluation of efficacy using two widely accepted disease-progression markers. The first marker, the revised ALS
Functional Rating Scale, or ALSFRS-R, is used to determine patients’ overall functional capacity and independence in 13 activities.
The second marker measures vital capacity, an assessment of lung capacity, which is an important disease indicator since ALS
sufferers eventually lose the ability to breathe on their own. The trial was designed to be able to detect only extreme responses in these
two markers.
The results from our Phase IIa trial and open-label extension clinical trial indicated that arimoclomol was safe and well tolerated in
ALS volunteers, even at the highest administered dose. Arimoclomol was detected in participants’ cerebral spinal fluid, demonstrating
that it passed the so-called blood:brain barrier, and participants treated with arimoclomol experienced a statistically significant
decrease in adverse events of weakness compared with the placebo group. As would be expected based upon the small size and short
duration of the Phase IIa trial, we observed no statistically significant effects in disease progression markers. We did, however,
observe a trend toward slower disease progression in the highest dosage group. Since there was no concurrent placebo control group in
our open-label extension clinical trial, we compared the results with results in an untreated placebo group with similar characteristics
in a prior ALS clinical trial published in July 2006 in Annals of Neurology. The results indicated a trend toward a slower average
progression in every disease marker in the patients treated with arimoclomol compared to the historical placebo control. In particular,
we observed a decrease of 21% in the rate of decline for ALSFRS-R, 8% for vital capacity, 23% for total body weight and 20% for
body mass index when compared with that historical control. No definitive conclusions can be drawn from these data without a
concurrent placebo control group, and investors are cautioned against relying on these data as an indication of arimoclomol’s potential
efficacy.
The favorable safety and tolerability profile observed in our Phase IIa trial, open-label extension clinical trial and animal
toxicology studies of arimoclomol suggested that we may be able to safely increase the dose of arimoclomol without causing
significant side effects. The results from the subsequent multiple ascending-dose study indicated that arimoclomol was safe and well
tolerated, even at doses of 600 mg three times daily (six times higher than the highest dose used in the Phase IIa and open-label
studies), when administered to healthy volunteers over a seven-day period. Results from the 28-day safety clinical trial in healthy
volunteers indicated that the dosage of 400 mg administered three times daily also was safe and well tolerated.
Phase IIb efficacy trial. The Phase IIb efficacy trial will evaluate the safety and efficacy in ALS patients of a 400 mg dose of
arimoclomol administered orally three times daily. We expect to enroll in the trial 390 ALS patients in two stages. We first expect to
enroll 24 patients in a four-week safety lead-in stage involving weekly clinical monitoring to assure that the safety previously
observed in healthy volunteers is also observed in the ALS volunteers. Unless serious safety issues are observed during this lead-in
stage, dosing will continue uninterrupted for these participants, but clinical monitoring will be reduced to a four-week basis for the
remainder of the study. An independent data monitoring committee will review all safety data from the four-week lead-in stage. If no
substantial safety issues are identified, we expect to enroll the remaining 366 ALS volunteers in the second stage. With the exception
of the 24 participants in the first stage of the trial, all of the ALS trial volunteers will be monitored every four weeks for the initial
nine-month trial period. After collecting primary efficacy endpoint data, we plan to continue double-blind administration of
arimoclomol in trial patients with monitoring at eight-week intervals for an additional nine months in order to provide additional data
on secondary endpoints and on long-term safety and efficacy.
That Phase IIb clinical trial was placed on clinical hold by the FDA in January 2008. Based on written correspondence we received
from the FDA, their decision pertained to a previously completed animal toxicology study in rats and was not related to data generated
from any human studies with arimoclomol. Subject to our ability to provide satisfactory information to the FDA to remove the clinical
hold, we currently expect to complete patient enrollment in the Phase IIb efficacy trial approximately nine months following the
resumption of the trial, and anticipate and that data regarding the trial’s primary efficacy endpoint will be available approximately
18 months following the resumption of the trial.
6
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Based on preliminary discussions with the FDA, we plan to conduct a second efficacy clinical trial for ALS, possibly overlapping
with the Phase IIb efficacy trial, to provide additional data to support possible FDA approval.
Arimoclomol for the treatment of stroke. Stroke results from an acute loss of normal blood flow to the brain caused most often by a
blockage in a blood vessel (ischemic) or due to leaking of blood from a vessel (hemorrhagic). According to the American Heart
Association: stroke is the third leading cause of death and the number one cause of long-term disability in the United States; between
50% and 70% of stroke survivors regain functional independence, but between 15% and 30% are permanently disabled and 20%
require institutional care within three months after stroke; and the direct and indirect stroke cost in the United States totaled
approximately $58 billion in 2006.
After the normal flow of blood is restored to the brain after the initial event, post-stroke neurological function continues to decline.
We believe that this continuing decline in neurological function is the consequence of mis-folded protein aggregates generated as a
result of oxygen deprivation during the original event.
Preclinical efficacy studies completed by us in April 2007 indicated that arimoclomol accelerated the time to recovery, and
improved recovery, in experimental animal models of stroke. These results were obtained even when arimoclomol was administered
as long as 48 hours after onset.
By comparison, tissue plasminogen activator, or t-PA, the only treatment currently approved in the United States for acute ischemic
stroke, must be administered within three hours of stroke, which substantially limits the number of patients who qualify for this
treatment. In light of these preclinical data, we plan to commence a Phase II clinical trial for arimoclomol in stroke recovery in the
second half of this year, subject to FDA clearance.
Iroxanadine. Iroxanadine also is an orally-administered small-molecule product candidate. We believe it functions by stimulating
the molecular chaperone protein response in the endothelium, the thin layer of cells that line the interior surface of human blood
vessels.
Iroxanadine for the treatment of diabetic ulcers. Type 2 diabetes is a major health problem with significant secondary
complications. The American Diabetes Association estimates that there are 21 million type 2 diabetes sufferers in the United States.
The World Health Organization estimates that there are more than 162 million cases of type 2 diabetes worldwide. According to the
American Diabetes Association, 15% of all diabetics will develop a foot ulcer during their lifetime, and over 82,000 non-traumatic
lower-limb amputations were performed on diabetics in the United States in 2002 due to such ulcers and other complications. We
believe there is strong support in the scientific literature for the assertion that diabetic foot ulcers fail to heal efficiently, in part, due to
the dysfunction of endothelial cells lining the blood vessels caused by protein mis-folding.
Animal studies completed by us in May 2007 indicated that iroxanadine significantly decreased the time it took for wounds to heal
in diabetic mice without affecting healing in healthy mice. Wound healing in the diabetic mice, which normally required twice the
time to heal as healthy mice, was accelerated to the extent that healing time of diabetic mice treated with iroxanadine was
indistinguishable from that in untreated healthy mice.
In Phase I clinical trials in healthy volunteers and Phase II clinical trials in patients with chronic high blood pressure conducted
prior to our acquisition of iroxanadine, iroxanadine was determined to be safe and well tolerated and demonstrated significant
improvement in the function of endothelial cells in the brachial artery, a major blood vessel of the upper arm. Based on our preclinical
results and the earlier clinical study data, we plan to commence a Phase II clinical trial with oral iroxanadine for the treatment of
diabetic foot ulcers in the second half of 2008, subject to FDA clearance.
Our Research Programs and Other Technologies
We are actively conducting scientific research at our research and development facility in San Diego, California. Our research is
aimed at discovering and validating novel drug targets, analyzing our current product candidates and library of related compounds and
developing backup compounds and new therapies based on the amplification of molecular chaperone proteins.
Our other current technologies, which we acquired or developed prior to the acquisition of our molecular chaperone amplification
technology, are CRL-5861, an intravenous agent for treatment of sickle cell disease and other acute vaso-occlusive disorders, and
TranzFect, a delivery technology for DNA-based and conventional vaccines and other potential uses.
7
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Our Separation from RXi Pharmaceuticals Corporation
RXi Pharmaceuticals Corporation, or RXi, was founded in April 2006 by us and four researchers in the field of RNAi, including
Dr. Craig Mello, recipient of the 2006 Nobel Prize for Medicine for his co-discovery of RNAi. RNAi is a naturally occurring
mechanism for the regulation of gene expression that has the potential to selectively inhibit the activity of any human gene. As
evidenced by Kim and Rossi’s review published in March 2007 in Nature Reviews Genetics, it is believed that this inhibition may
potentially treat human diseases by “silencing” genes that lead to disease.
In January 2007, we transferred to RXi substantially all of our RNAi-related technologies and assets, and RXi began operating on a
stand-alone basis for the purpose of accelerating the discovery of RNAi therapeutics previously sponsored by us. RXi’s initial focus is
on developing RNAi-based product candidates for treating neurological and metabolic disorders and cancer.
Until recently, we owned approximately 85% of the outstanding shares of common stock of RXi and our consolidated financial
statements, including our consolidated financial statements as of and for the year ended December 31, 2007 included in this Annual
Report, reflected the consolidated financial condition and results of operations of RXi. On February 14, 2008, our board of directors
declared a dividend, payable to our stockholders as of March 6, 2008, the record date, of one share of RXi common stock for each
approximately 20.05 shares of our common stock held by such stockholders. The dividend was paid on March 11, 2008. The RXi
shares distributed by us to our stockholders constituted approximately 36% of the currently outstanding RXi shares, so we currently
own approximately 49% of the outstanding shares of RXi common stock. As a result, our financial statements will no longer
consolidate the financial condition and results of operation of RXi, but instead will account for our ongoing investment in RXi based
on the equity method of accounting as discussed in the “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” section of this Annual Report.
In connection with our distribution of RXi shares to our stockholders, RXi became a public reporting company and its common
stock was listed for trading on The NASDAQ Capital Market under the symbol “RXII.”
On February 15, 2007, we entered into a letter agreement with RXi and certain of RXi’s current stockholders under which RXi
agreed to grant to us preemptive rights to acquire any “new securities” (as defined) that RXi proposes to sell or issue so that we may
maintain our percentage ownership in RXi at any time that we own less than 50% of the outstanding shares of RXi common stock.
Our preemptive rights will expire on January 8, 2012 or such earlier time at which we own less than 10% of RXi’s outstanding
common stock.
Under this letter agreement, we agreed that we will vote our RXI shares for the election of RXi directors and take other actions to
ensure that a majority of the board of directors of RXi are independent of us. We further agreed to approve of actions that may be
adopted and recommended by the RXi board of directors to facilitate any future financing by RXi.
Manufacturing
We have no capability to manufacture supplies of any of our products, and rely on third-party contract manufacturers to produce
materials needed for research and clinical trials, including clinical supplies of arimoclomol for our current Phase IIb trial. To be
commercialized, our products also must be capable of being manufactured in commercial quantities in compliance with stringent
regulatory requirements and at an acceptable cost. We intend to rely on third-party manufacturers to produce commercial quantities of
any products for which we are able to obtain marketing approval. We have not commercialized any product, and so have not
demonstrated that any of our product candidates can be manufactured in commercial quantities in accordance with regulatory
requirements or at an acceptable cost.
If our product candidates cannot be manufactured in suitable quantities and in accordance with regulatory standards, our clinical
trials, regulatory approvals and marketing efforts for such products may be delayed. Such delays could adversely affect our
competitive position and our chances of generating significant recurring revenues. If our products are not able to be manufactured at
an acceptable cost, the commercial success of our products may be adversely affected.
Patents and Proprietary Technology
We actively seek patent protection for our technologies, processes, uses, and ongoing improvements and consider our patents and
other intellectual property to be critical to our business. We acquired patents and patent applications, and have filed several new patent
applications, in connection with our molecular chaperone program.
8
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
We regularly evaluate the patentability of new inventions and improvements developed by us or our collaborators, and, whenever
appropriate, will endeavor to file United States and international patent applications to protect these new inventions and
improvements. We cannot be certain that any of the current pending patent applications we have filed or licensed, or any new patent
applications we may file or license, will ever be issued in the United States or any other country. There also is no assurance that any
issued patents will be effective to prevent others from using our products or processes. It is also possible that any patents issued to us,
as well as those we have licensed or may license in the future, may be held invalid or unenforceable by a court, or third parties could
obtain patents that we would need to either license or to design around, which we may be unable to do. Current and future competitors
may have licensed or filed patent applications or received patents, and may acquire additional patents and proprietary rights relating to
molecular chaperone amplification and other small molecule technology, RNAi technology, DNA-based vaccines or other
compounds, products or processes that may be competitive with ours.
In addition to patent protection, we attempt to protect our proprietary products, processes and other information by relying on trade
secrets and non-disclosure agreements with our employees, consultants and certain other persons who have access to such products,
processes and information. Under the agreements, all inventions conceived by employees are our exclusive property, but there is no
assurance that these agreements will afford significant protection against misappropriation or unauthorized disclosure of our trade
secrets and confidential information.
Competition
We are aware of only one drug, Rilutek, which was developed by Aventis Pharma AG, that has been approved by the FDA for the
treatment of ALS. Many companies are working to develop pharmaceuticals to treat ALS, including Aeolus Pharmaceuticals, Celgene
Corporation, Mitsubishi Tanabe Pharma Corporation, Ono Pharmaceuticals, Trophos SA, Knopp Neurosciences Inc., Faust
Pharmaceuticals SA, Oxford BioMedica plc, Phytopharm plc and Teva Pharmaceutical Industries Ltd., as well as RXi. ALS patients
often take over-the-counter supplements, including vitamin E, creatine and coenzyme Q10, or drugs such as lithium that are approved
for other indications. ALS belongs to a family of neurodegenerative diseases that includes Alzheimer’s, Parkinson’s and Huntington’s
diseases. Due to similarities between these diseases, a new treatment for one such disease potentially could be useful for treating
others. There are many companies producing and developing drugs used to treat neurodegenerative diseases other than ALS, including
Amgen, Inc., Biogen Idec, Boehringer Ingelheim, Cephalon, Inc., Ceregene, Inc., Elan Pharmaceuticals, plc, Forest Laboratories, Inc.,
H. Lundbeck A/S, Phytopharm plc, UCB Group and Wyeth.
Current drug classes used to treat stroke include antiplatelet agents, anticoagulants, salycylates, neuroprotectants and thrombolytic
agents. Prescription antiplatelet agents include Aggrenox by Boehringer Ingelheim, Plavix by Sanofi-Aventis and Bristol-Myers
Squibb, and Ticlid by Roche Pharmaceuticals. Coumadin by Bristol-Myers Squibb and Jantoven by Upsher-Smith Laboratories are
branded forms of warfarin, an anticoagulant. Moreover, Salicylates, like aspirin, are commonly used to treat patients after stroke. In
Europe, Ferrer Grupo markets the neroprotectant, Somazina. Activase, also known as tissue plasminogen activator, or t-PA, is a
thrombolytic agent marketed by Genentech. Many new drug candidates are in development by pharmaceutical and biotech companies,
including GlaxoSmithKline, Indeveus Pharmaceuticals, Ipsen, Merck & Co., Neurobiological Technologies, Ono Pharmaceuticals,
PAION AG and Wyeth. In addition to drug therapy, companies such as Medtronic and Northstar Neurosciences are developing
neurostimulation medical devices to aid in recovery after stroke.
The wound care market is highly competitive, and there are many products available for treating skin wounds, including diabetic
foot ulcers. Prescription and over-the-counter products for the prevention and treatment of infections include topical anti-infectives,
such as Betadine, silver sulfadiazine, hydrogen peroxide, Dakin’s solution and hypochlorous acid, and topical antibiotics, such as
Neosporine, Mupirocin and Bacitracin. Skin substitute products include Apligraf, manufactured by Organogenesis, Inc., which is an
FDA-cleared product using human dermal and epidermal cells placed on a collagen matrix, for the treatment of both venous stasis and
diabetic foot ulcers, and Dermagraft®, produced by Advanced BioHealing, Inc., which uses human derived dermal cells placed on a
polyglactin matrix and is FDA cleared to treat diabetic foot ulcers. In addition, a number of companies are working to develop
proprietary pharmaceuticals and cell-based therapies to treat diabetic wound healing, including Agennix, Inc., BioSyntech, Inc.,
CardioVascular BioTherapeutics, Inc., Cardium Therapeutics, Inc., Genentech Inc., KeraCure, Inc., King Pharmaceuticals, Inc.,
MacroChem Corporation, Oculus Innovative Sciences, Inc., Rovi Pharmaceutical Laboratories, SanuWave, Inc. and Wyeth.
Many companies, including large pharmaceutical and biotechnology firms with financial resources, research and development
staffs, and facilities that may be substantially greater than those of ours or our strategic partners or licensees, are engaged in the
research and development of pharmaceutical products that could compete with our potential products. To the extent that we seek to
acquire, through license or otherwise, existing or potential new products, we will be competing with numerous other companies, many
9
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
of which will have substantially greater financial resources, large acquisition and research and development staffs that may give those
companies a competitive advantage over us in identifying and evaluating these drug acquisition opportunities. Any products that we
acquire will be competing with products marketed by companies that in many cases will have substantially greater marketing
resources than we have. The industry is characterized by rapid technological advances and competitors may develop their products
more rapidly and such products may be more effective than those currently under development or that may be developed in the future
by our strategic partners or licensees. Competitive products for a number of the disease indications that we have targeted are currently
being marketed by other parties, and additional competitive products are under development and may also include products currently
under development that we are not aware of or products that may be developed in the future.
Government Regulation
The United States and other developed countries extensively regulate the preclinical and clinical testing, manufacturing, labeling,
storage, record-keeping, advertising, promotion, export, marketing and distribution of drugs and biologic products. The United States
Food and Drug Administration, under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act and other federal
statutes and regulations, regulates pharmaceutical and biologic products.
To obtain approval of our product candidates from the FDA, we must, among other requirements, submit data supporting safety
and efficacy for the intended indication as well as detailed information on the manufacture and composition of the product candidate.
In most cases, this will require extensive laboratory tests and preclinical and clinical trials. The collection of these data, as well as the
preparation of applications for review by the FDA involve significant time and expense. The FDA also may require post-marketing
testing to monitor the safety and efficacy of approved products or place conditions on any approvals that could restrict the therapeutic
claims and commercial applications of these products. Regulatory authorities may withdraw product approvals if we fail to comply
with regulatory standards or if we encounter problems at any time following initial marketing of our products.
The first stage of the FDA approval process for a new biologic or drug involves completion of preclinical studies and the
submission of the results of these studies to the FDA. This data, together with proposed clinical protocols, manufacturing information,
analytical data and other information submitted to the FDA, in an investigational new drug application, or IND, must become effective
before human clinical trials may commence. Preclinical studies generally involve FDA regulated laboratory evaluation of product
characteristics and animal studies to assess the efficacy and safety of the product candidate.
After the IND becomes effective, a company may commence human clinical trials. These are typically conducted in three
sequential phases, but the phases may overlap. Phase I trials consist of testing of the product candidate in a small number of patients or
healthy volunteers, primarily for safety at one or more doses. Phase II trials, in addition to safety, evaluate the efficacy of the product
candidate in a patient population somewhat larger than Phase I trials. Phase III trials typically involve additional testing for safety and
clinical efficacy in an expanded population at multiple test sites. A company must submit to the FDA a clinical protocol, accompanied
by the approval of the Institutional Review Boards at the institutions participating in the trials, prior to commencement of each clinical
trial.
To obtain FDA marketing authorization, a company must submit to the FDA the results of the preclinical and clinical testing,
together with, among other things, detailed information on the manufacture and composition of the product candidate, in the form of a
new drug application, or NDA, or, in the case of a biologic, a biologics license application, or BLA.
The amount of time taken by the FDA for approval of an NDA or BLA will depend upon a number of factors, including whether
the product candidate has received priority review, the quality of the submission and studies presented, the potential contribution that
the compound will make in improving the treatment of the disease in question, and the workload at the FDA.
The FDA may, in some cases, confer upon an investigational product the status of a fast track product. A fast track product is
defined as a new drug or biologic intended for the treatment of a serious or life-threatening condition that demonstrates the potential to
address unmet medical needs for this condition. The FDA can base approval of an NDA or BLA for a fast track product on an effect
on a surrogate endpoint, or on another endpoint that is reasonably likely to predict clinical benefit. If a preliminary review of clinical
data suggests that a fast track product may be effective, the FDA may initiate review of entire sections of a marketing application for a
fast track product before the sponsor completes the application. The FDA has granted fast track designation and orphan drug status to
arimoclomol for the treatment of ALS.
We anticipate that our products will be manufactured by our strategic partners, licensees or other third parties. Before approving a
BLA, the FDA will inspect the facilities at which the product is manufactured and will not approve the product unless the
10
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
manufacturing facilities are in compliance with the FDA’s cGMP, which are regulations that govern the manufacture, holding and
distribution of a product. Manufacturers of biologics also must comply with the FDA’s general biological product standards. Our
manufacturers also will be subject to regulation under the Occupational Safety and Health Act, the Environmental Protection Act, the
Nuclear Energy and Radiation Control Act, the Toxic Substance Control Act and the Resource Conservation and Recovery Act.
Following approval, the FDA periodically inspects drug and biologic manufacturing facilities to ensure continued compliance with the
good manufacturing practices regulations. Our manufacturers will have to continue to comply with those requirements. Failure to
comply with these requirements subjects the manufacturer to possible legal or regulatory action, such as suspension of manufacturing
or recall or seizure of product. Adverse patient experiences with the product must be reported to the FDA and could result in the
imposition of marketing restrictions through labeling changes or market removal. Product approvals may be withdrawn if compliance
with regulatory requirements is not maintained or if problems concerning safety or efficacy of the product occur following approval.
The labeling, advertising, promotion, marketing and distribution of a drug or biologic product also must be in compliance with
FDA and Federal Trade Commission requirements which include, among others, standards and regulations for off-label promotion,
industry sponsored scientific and educational activities, promotional activities involving the internet, and direct-to-consumer
advertising. We also will be subject to a variety of federal, state and local regulations relating to the use, handling, storage and
disposal of hazardous materials, including chemicals and radioactive and biological materials. In addition, we will be subject to
various laws and regulations governing laboratory practices and the experimental use of animals. In each of these areas, as above, the
FDA has broad regulatory and enforcement powers, including the ability to levy fines and civil penalties, suspend or delay issuance of
product approvals, seize or recall products, and deny or withdraw approvals.
We will also be subject to a variety of regulations governing clinical trials and sales of our products outside the United States.
Whether or not FDA approval has been obtained, approval of a product candidate by the comparable regulatory authorities of foreign
countries and regions must be obtained prior to the commencement of marketing the product in those countries. The approval process
varies from one regulatory authority to another and the time may be longer or shorter than that required for FDA approval. In the
European Union, Canada and Australia, regulatory requirements and approval processes are similar, in principle, to those in the United
States.
Employees
As of March 28, 2008, we had 27 employees, 14 of whom were engaged in research and development activities and 13 of whom
were involved in management and administrative operations. RXi had 17 employees, 9 of whom were engaged in research and
development activities and 8 of whom were involved in management and administrative operations.
Available Information
We maintain a website at www.cytrx.com and make available there, free of charge, our periodic reports filed with the Securities
and Exchange Commission, or SEC, as soon as is reasonably practicable after filing. The public may read and copy any materials we
file with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Washington, DC 20549. The public may obtain
information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains a website at
http:/www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers such as us that file
electronically with the SEC. We post on our website our Code of Business Conduct and Ethics.
11
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Item 1A. RISK FACTORS
We are subject to a number of risks and uncertainties, including the risks and uncertainties discussed below, as well as any
modification, replacement or update to these risks and uncertainties that are reflected in any subsequent filings we make with the
Securities and Exchange Commission, or SEC. If any of these risks or uncertainties actually occur, our business, results of operations,
financial condition and prospects could be materially and adversely affected. In that case, the trading price of our common stock
could decline. These risks and uncertainties are not the only ones facing us. Additional risks and uncertainties not presently known to
us, or that we currently perceive as immaterial, also may adversely affect us.
Risks Associated With Our Business
We have operated at a loss and will likely continue to operate at a loss for the foreseeable future.
We have operated at a loss due to our substantial expenditures for research and development of our product candidates and for
general and administrative purposes and our lack of significant recurring revenue. We incurred net losses of $21.9 million,
$16.8 million and $15.1 million for the years ended December 31, 2007, 2006, and 2005, respectively, and we had an accumulated
deficit as of December 31, 2007 of approximately $161.5 million. We are likely to continue to incur losses unless and until we are able
to commercialize one or more of our product candidates. These losses, among other things, have had and will continue to have an
adverse effect on our stockholders’ equity and working capital. Because of the numerous risks and uncertainties associated with our
product development efforts, we are unable to predict when we may become profitable, if at all. If we are unable to achieve and then
maintain profitability, the market value of our common stock will likely decline.
Because we have no source of significant recurring revenue, we must depend on financing to sustain our operations.
Developing products and conducting clinical trials require substantial amounts of capital. To date, we have relied primarily upon
proceeds from sales of our equity securities and the exercise of options and warrants, and to a much lesser extent, upon payments from
our strategic partners and licensees, to generate funds needed to finance our business and operations. We will need to raise additional
capital to, among other things:
•
•
•
•
•
•
fund our clinical trials and pursue regulatory approval of our existing and possible future product candidates;
expand our research and development activities;
finance our general and administrative expenses;
acquire or license technologies;
prepare, file, prosecute, maintain, enforce and defend our patent and other proprietary rights; and
develop and implement sales, marketing and distribution capabilities to successfully commercialize any product for which we
obtain marketing approval and choose to market ourselves.
Our revenues were $7.5 million, $2.1 million and $0.2 million, respectively, for years ended December 31, 2007, 2006 and 2005.
Our revenues for the years ended December 31, 2007 and 2006 included $7.2 million and $1.8 million, respectively, of deferred
revenue recognized from our sale in August 2006 of a one-percent royalty interest in worldwide sales of arimoclomol for the treatment
of ALS. We will have no significant recurring revenue unless we are able to commercialize one or more of our product candidates in
development, which may require us to first enter into license or other strategic arrangements with third parties.
At December 31, 2007, we had cash, cash equivalents and short-term investments of $60.4 million, including $11.7 million held by
RXi. We believe that CytRx’s current resources will be sufficient to support our currently planned level of operations into the second
half of 2009. This estimate is based, in part, upon our currently projected expenditures for 2008 of approximately $29.2 million,
including approximately $5.1 million for our clinical program for arimoclomol for ALS and related studies, approximately
$6.4 million for our planned Phase II clinical trial of arimoclomol in stroke patients and Phase II clinical trial of iroxanadine for
diabetic ulcers, approximately $9.2 million for equipping and operating our research laboratory in San Diego, California, and
approximately $8.5 million for other general and administrative expenses. Management believes that RXi’s current resources will be
sufficient to support its currently planned level of operations into the second quarter of 2009. As described in the risk factor that
12
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
follows below in this section, these projected expenditures are based upon numerous assumptions and subject to many uncertainties,
and our actual expenditures may be significantly different from these projections.
If we obtain marketing approval as currently planned and successfully commercialize our product candidates, we anticipate it will
take a minimum of three years, and possibly longer, for us to generate significant recurring revenue, and we will be dependent on
future financing until such time, if ever, as we can generate significant recurring revenue. We have no commitments from third parties
to provide us with any additional financing, and we may not be able to obtain future financing on favorable terms, or at all. If we raise
additional funds by issuing equity securities, dilution to stockholders may result and new investors could have rights superior to
holders of the shares issued in this offering. In addition, debt financing, if available, may include restrictive covenants. If adequate
funds are not available to us, we may have to liquidate some or all of our assets or to delay or reduce the scope of or eliminate some
portion or all of our development programs or clinical trials. We also may have to license to other companies our product candidates
or technologies that we would prefer to develop and commercialize ourselves.
If we do not achieve our projected development goals in the time frames we announce and expect, or if our financial projections
prove to be materially inaccurate, the commercialization of our products may be delayed and our stock price may significantly
decline.
From time to time, we estimate the timing of the accomplishment of various scientific, clinical, regulatory and other product
development goals, which we sometimes refer to as milestones. These milestones may include the commencement or completion of
scientific studies and clinical trials and the submission of regulatory filings. For example, we have disclosed in this Annual Report the
expected timing of certain milestones relating to our arimoclomol and iroxanadine clinical development program.
We also may disclose projected expenditures or other forecasts for future periods. For example, we have stated above in this
Annual Report that we currently project total expenditures for fiscal year 2008 to be approximately $29.2 million, including
approximately $5.1 million for our clinical program for arimoclomol for ALS and related studies, approximately $6.4 million for our
planned Phase II clinical trial of arimoclomol in stroke patients and Phase II clinical trial of iroxanadine for diabetic ulcers,
approximately $9.2 million for equipping and operating our research laboratory in San Diego, California and approximately
$8.5 million for other general and administrative expenses. Our financial projections are based on management’s current expectations
and do not contain any “cushion” for any specific uncertainties, or for the uncertainties inherent in all financial forecasting. The
assumptions management has used to produce these projections may significantly change or prove to be inaccurate. Accordingly, you
should not unduly rely on any of these projections.
The actual timing of milestones and actual expenditures or other financial results can vary dramatically compared to our estimates,
in some cases for reasons beyond our control. If we do not meet milestones or financial projections as announced from time to time,
our stock price may significantly decline and the development and commercialization of our products may be delayed.
If our products are not successfully developed and approved by the FDA, we may be forced to reduce or curtail our operations.
All of our product candidates in development must be approved by the FDA or similar foreign governmental agencies before they
can be marketed. The process for obtaining FDA and foreign government approvals is both time-consuming and costly, with no
certainty of a successful outcome. This process typically includes the conduct of extensive pre-clinical and clinical testing, including
post-approval testing, which may take longer or cost more than we or our licensees, if any, anticipate, and may prove unsuccessful due
to numerous factors. Product candidates that may appear to be promising at early stages of development may not successfully reach
the market for a number of reasons. The results of preclinical and initial clinical testing of these product candidates may not
necessarily be predictive of the results that will be obtained from later or more extensive testing. Companies in the pharmaceutical and
biotechnology industries have suffered significant setbacks in advanced clinical trials, even after obtaining promising results in earlier
trials.
Numerous factors could affect the timing, cost or outcome of our product development efforts, including the following:
•
•
•
difficulty in securing centers to conduct trials;
difficulty in enrolling patients in conformity with required protocols or projected timelines;
unexpected adverse reactions by patients in trials;
13
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
•
•
•
•
•
•
difficulty in obtaining clinical supplies of the product;
changes in or our inability to comply with FDA or foreign governmental product testing, manufacturing or marketing
requirements;
regulatory inspections of clinical trials or manufacturing facilities, which may, among other things, require us or our
manufacturers or licensees to undertake corrective action or suspend or terminate the affected clinical trials if investigators
find them not to be in compliance with applicable regulatory requirements;
inability to generate statistically significant data confirming the safety and efficacy of the product being tested;
modification of the product during testing; and
reallocation of our limited financial and other resources to other clinical programs.
In addition, the FDA and other regulatory agencies may lack experience in evaluating product candidates to treat ALS. For
example, we are aware of only one drug that the FDA has approved to treat ALS. This inexperience may lengthen the regulatory
review process, increase our development costs and delay or prevent commercialization of arimoclomol or our other product
candidates. It is possible that none of the product candidates we develop will obtain the regulatory approvals necessary for us to begin
selling them. The time required to obtain FDA and foreign governmental approvals is unpredictable, but often can take years
following the commencement of clinical trials, depending upon the complexity of the product candidate. Any analysis we perform on
data from clinical activities is subject to confirmation and interpretation by regulatory authorities, which could delay, limit or prevent
regulatory approval. Furthermore, even if we obtain regulatory approvals, our products and the manufacturing facilities used to
produce them will be subject to continual review, including periodic inspections and mandatory post- approval clinical trials by the
FDA and other US and foreign regulatory authorities. Any delay or failure in obtaining required approvals or to comply with
post-approval regulatory requirements could have a material adverse effect on our ability to generate revenue from the particular
product candidate. The failure to comply with any post-approval regulatory requirements also could also result in the rescission of the
related regulatory approvals or the suspension of sales of the offending product.
Our current and planned clinical trials of our molecular chaperone amplification product candidates may fail to show that
these product candidates are clinically safe and effective.
The results of our Phase IIa clinical trial and open-label extension clinical trial of arimoclomol for the treatment of ALS indicated
that arimoclomol was safe and well-tolerated in patients. However, the results of the open-label extension clinical trial indicated only a
non-statistically significant trend of improvement in the ALSFRS in the arimoclomol high-dose group as compared with reports of
previous studies of untreated patients. Because this trial did not have concurrent placebo control group, we can draw no definitive
conclusions with respect to efficacy. In December 2007, we initiated a Phase IIb efficacy trial of arimoclomol for the treatment of
ALS, and we plan to undertake a second efficacy trial of arimoclomol for ALS, possibly overlapping with the Phase IIb efficacy trial,
to provide additional data to support possible FDA approval. In addition, we plan to conduct a Phase II clinical trial of arimoclomol in
stroke patients and to pursue clinical development of iroxanadine for diabetic ulcers, both of which would require significant
additional testing. The FDA may also require additional, larger Phase III clinical trials before we may submit an application for
marketing approval. None of these trials may yield favorable safety and efficacy data, and the FDA may disagree with how we
interpret the data from these clinical trials. For example, the favorable safety data we observed in earlier trials may not be reproduced
in these later trials, and these later trials may not yield statistically significant data indicating that the product candidates are clinically
effective. Accordingly, we may ultimately be unable to provide the FDA with satisfactory data on clinical safety and efficacy
sufficient to enable the FDA to approve arimoclomol or iroxanadine for these indications.
The FDA recently placed a clinical hold on our Phase IIb efficacy trial of arimoclomol, which will delay the trial and could
lead to a requirement that we conduct additional toxicology studies or alter the trial design.
In January 2008, the FDA placed a clinical hold on our Phase IIb clinical efficacy trial of arimoclomol for the treatment of ALS
due to concerns relating to previous toxicology studies of arimoclomol in rats. Although we have submitted additional information to
the FDA regarding these concerns, we cannot predict how long it may take to resolve them. Depending on the outcome of the FDA’s
review, we may be:
14
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
•
•
•
required to conduct additional toxicology or human studies prior to or in parallel with the resumption of our clinical trial,
which would result in substantial additional expenses and possible significant delays in completing the clinical trial;
required to alter the design including reducing the dosage of arimoclomol, of the clinical trial, which could significantly delay
the completion of the trial, increase the cost of the trial, adversely affect our ability to demonstrate the efficacy of arimoclomol
in the trial or cause us to cancel the trial altogether due to one or more of these consideration; or
prohibited by the FDA from resuming our current planned clinical trial or initiating any other clinical trial of arimoclomol for
the treatment of ALS or any other indication due to safety concerns.
We also planned to commence a Phase II clinical trial for arimoclomol for stroke recovery in the second half of 2008. In light of
the FDA’s concerns regarding toxicity of arimoclomol, our planned Phase I trial for this indication is subject to similar risks.
Even if we obtain regulatory approval for arimoclomol or iroxanadine, these product candidates may not achieve market
acceptance or be profitable.
We do not expect to receive regulatory approvals for the commercial sale of arimoclomol or iroxanadine for several years, if at all.
Even if we do receive regulatory approvals, the future commercial success of these drug candidates will depend, among other things,
on their acceptance by physicians, patients, healthcare payors and other members of the medical community as therapeutic and
cost-effective alternatives to commercially available products. If our product candidates fail to gain market acceptance, we may not be
able to earn sufficient revenues to continue our business.
Any drugs we develop may become subject to unfavorable pricing regulations, third-party reimbursement practices or
healthcare reform initiatives, which could have a material adverse effect on our business.
We intend to sell our products primarily to hospitals which receive reimbursement for the health care services they provide to their
patients from third-party payors, such as Medicare, Medicaid and other domestic and international government programs, private
insurance plans and managed care programs. Most third-party payors may deny reimbursement if they determine that a medical
product was not used in accordance with cost-effective treatment methods, as determined by the third-party payor, or was used for an
unapproved indication. Third-party payors also may refuse to reimburse for experimental procedures and devices. Furthermore,
because our programs are in the early stages of development, we are unable at this time to determine their cost-effectiveness and the
level or method of reimbursement. Increasingly, the third-party payors who reimburse patients are requiring that drug companies
provide them with predetermined discounts from list prices, and are challenging the prices charged for medical products. If the price
we are able to charge for any products we develop is inadequate in light of our development and other costs, our profitability could be
adversely effected.
We currently expect that any drugs we develop may need to be administered under the supervision of a physician. Under currently
applicable law, drugs that are not usually self-administered may be eligible for coverage by the Medicare program if:
they are “incidental” to a physician’s services,
•
•
•
they are “reasonable and necessary” for the diagnosis or treatment of the illness or injury for which they are administered
according to accepted standard of medical practice,
they are not excluded as immunizations, and
they have been approved by the FDA.
Our current financial resources may be diminished if we elect to provide RXi with additional future funding.
We have no obligation to provide any additional funding to RXi, but we might seek to do so in order to protect our investment in
RXi if RXi is unable to obtain sufficient funding on its own or to maintain our relative ownership interest if RXi consummates a
financing. If we provide RXi with any additional funding, we will have less funds available for our own business and operations.
15
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
We may rely upon third parties in connection with the commercialization of our products.
We currently plan to continue the development of arimoclomol for the treatment of ALS under our Master Agreement with
Pharmaceutical Research Associates for clinical trials management services, and may retain the services of site management and
clinical research organizations to help conduct our clinical trials. We may seek to complete the development of arimoclomol and
market it ourselves if it is approved by the FDA. However, the completion of the development of arimoclomol and our other product
candidates, as well as the marketing of these products, may require us to enter into strategic alliances, license agreements or other
collaborative arrangements with other pharmaceutical companies under which those companies will be responsible for one or more
aspects of the commercial development and eventual marketing of our products.
Our products may not have sufficient potential commercial value to enable us to secure strategic arrangements with suitable
companies on attractive terms, or at all. If we are unable to enter into such arrangements, we may not have the financial or other
resources to complete the development of any of our products and may have to sell our rights in them to a third party or abandon their
development altogether.
To the extent we enter into collaborative arrangements, we will be dependent upon the timeliness and effectiveness of the
development and marketing efforts of our contractual partners. If these companies do not allocate sufficient personnel and resources to
these efforts or encounter difficulties in complying with applicable FDA and other regulatory requirements, we may not obtain
regulatory approvals as planned, if at all, and the timing of receipt or the amount of revenue from these arrangements may be
materially and adversely affected. By entering into these arrangements rather than completing the development and then marketing
these products on our own, the profitability to us of these products may decline.
We may be unable to protect our intellectual property rights, which could adversely affect our ability to compete effectively.
We believe that obtaining and maintaining patent and other intellectual property rights for our technologies and potential products
is critical to establishing and maintaining the value of our assets and our business. We will be able to protect our technologies from
unauthorized use by third parties only to the extent that we have rights to valid and enforceable patents or other proprietary rights that
cover them. Although we have patents and patent applications directed to our molecular chaperone amplification technologies, these
patents and applications may not prevent third parties from developing or commercializing similar or identical technologies. In
addition, our patents may be held to be invalid if challenged by third parties, and our patent applications may not result in the issuance
of patents.
The patent positions of pharmaceutical and biotechnology companies can be highly uncertain and involve complex legal and
factual questions for which important legal principles remain unresolved. No consistent policy regarding the breadth of claims allowed
in biotechnology patents has emerged to date in the United States and in many foreign countries. The application and enforcement of
patent laws and regulations in foreign countries is even more uncertain. Accordingly, we may not be able to effectively file, protect or
defend our proprietary rights on a consistent basis. In particular, the patents and patent applications related to our molecular chaperone
amplification product candidates were issued or filed by third parties prior to the time we acquired rights to them, and they begin to
expire in 2016. The validity, enforceability and ownership of those patents and patent applications may be challenged, and if a court
decides that our patents are not valid, we will not have the right to stop others from using our inventions. There is also the risk that,
even if the validity of our patents is upheld, a court may refuse to stop others on the ground that their activities do not infringe our
patents.
Any litigation brought by us to protect our intellectual property rights could be costly and have a material adverse effect on our
operating results or financial condition, make it more difficult for us to enter into strategic alliances with third parties to develop our
products, or discourage our existing licensees from continuing their development work on our potential products. If our patent
coverage is insufficient to prevent third parties from developing or commercializing similar or identical technologies, the value of our
assets is likely to be materially and adversely affected.
We also rely on certain proprietary trade secrets and know-how, especially where we believe patent protection is not appropriate or
obtainable. However, trade secrets and know-how are difficult to protect. Although we have taken measures to protect our unpatented
trade secrets and know-how, including the use of confidentiality and invention assignment agreements with our employees,
consultants and some of our contractors, it is possible that these persons may disclose our trade secrets or know-how or that our
competitors may independently develop or otherwise discover our trade secrets and know-how.
16
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
If our product candidates infringe the rights of others, we could be subject to expensive litigation or be required to obtain
licenses from others to develop or market them.
Our competitors or others may have patent rights that they choose to assert against us or our licensees, suppliers, customers or
potential collaborators. Moreover, we may not know about patents or patent applications that our products would infringe. For
example, because patent applications can take many years to issue, there may be currently pending applications, unknown to us, that
may later result in issued patents that our arimoclomol, iroxanadine or other product candidates would infringe. In addition, if third
parties file patent applications or obtain patents claiming technology also claimed by us in issued patents or pending applications, we
may have to participate in interference proceedings in the US Patent and Trademark Office to determine priority of invention. If third
parties file oppositions in foreign countries, we may also have to participate in opposition proceedings in foreign tribunals to defend
the patentability of our foreign patent applications.
If a third party claims that we infringe its proprietary rights, any of the following may occur:
•
•
•
•
we may become involved in time-consuming and expensive litigation, even if the claim is without merit;
we may become liable for substantial damages for past infringement if a court decides that our technology infringes a
competitor’s patent;
a court may prohibit us from selling or licensing our product without a license from the patent holder, which may not be
available on commercially acceptable terms, if at all, or which may require us to pay substantial royalties or grant cross
licenses to our patents; and
we may have to redesign our product candidates or technology so that it does not infringe patent rights of others, which may
not be possible or commercially feasible.
If any of these events occurs, our business and prospects will suffer and the market price of our common stock will likely decline
substantially.
We have reported several material weaknesses in the effectiveness of our internal controls over financial reporting, and if we
cannot maintain effective internal controls or provide reliable financial and other information, investors may lose confidence in
our SEC reports.
In this Annual Report, we are reporting material weaknesses in the effectiveness of our internal controls over financial reporting
related to failures on the part of our accounting personnel to follow established practices and procedures and a failure to keep current
our legal database for contracts relating to our arimoclomol development program, which are described in more detail below under the
heading “Controls and Procedures.” Additionally, within the past three years:
•
•
•
We identified a material weakness related to our accounting for an equity transaction by RXi and our tax withholding in
connection with exercises of employee stock options. As a result, we restated our financial statements for the quarter ended
June 30, 2007 and extended the filing of our quarterly report for the quarter ended September 30, 2007.
We identified a material weakness related to our accounting for transactions at our former laboratory facility in Worcester,
Massachusetts. As a result, we restated our financial statements for the quarters ended March 31, 2006, June 30, 2006 and
September 30, 2006.
We improperly applied generally accepted accounting principles related to our accounting for deemed dividends incurred in
connection with anti-dilution adjustments made to our outstanding warrants. This misapplication of accounting principles
constituted a material weakness and caused us to twice restate our financial statements for the quarters ended March 31, 2005,
June 30, 2005 and September 30, 2005 and for the year ended December 31, 2005, as well as restate our financial statements
for the quarters ended March 31, 2006, June 30, 2006 and September 30, 2006.
•
We miscalculated pro forma employee stock option compensation figures disclosed in the footnotes to our financial
statements. As a result, we restated our financial statements for the quarters ended March 31, 2005, June 30, 2005 and
September 30, 2005 and for the year ended December 31, 2005.
17
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
In addition, we concluded in our quarterly reports for the quarters ended June 30, 2007 and September 30, 2007, that our disclosure
controls and procedures were ineffective as of those dates. Disclosure controls generally include controls and procedures designed to
ensure that information required to be disclosed by us in the reports we file with the SEC is recorded, processed, summarized and
reported within the time periods specified in the SEC’s rules and forms. We also recently filed an amendment to an SEC report to
correct certain form errors.
Effective internal controls over financial reporting and disclosure controls and procedures are necessary for us to provide reliable
financial and other reports and effectively prevent fraud. If we cannot maintain effective internal controls or provide reliable financial
or SEC reports or prevent fraud, investors may lose confidence in our SEC reports, our operating results and the trading price of our
common stock could suffer and we may become subject to litigation.
We are subject to intense competition, and we may not compete successfully.
We and our strategic partners or licensees may be unable to compete successfully against our current or future competitors. The
pharmaceutical, biopharmaceutical and biotechnology industries are characterized by intense competition and rapid and significant
technological advancements. Many companies, research institutions and universities are working in a number of areas similar to our
primary fields of interest to develop new products. There also is intense competition among companies seeking to acquire products
that already are being marketed. Many of the companies with which we compete have or are likely to have substantially greater
research and product development capabilities and financial, technical, scientific, manufacturing, marketing, distribution and other
resources than us and at least some of our present or future strategic partners or licensees.
As a result, these competitors may:
•
•
•
•
•
•
•
•
•
•
succeed in developing competitive products sooner than us or our strategic partners or licensees;
obtain FDA or foreign governmental approvals for their products before we can obtain approval of any of our products;
obtain patents that block or otherwise inhibit the development and commercialization of our product candidate candidates;
develop products that are safer or more effective than our products;
devote greater resources than us to marketing or selling products;
introduce or adapt more quickly than us to new technologies and other scientific advances;
introduce products that render our products obsolete;
withstand price competition more successfully than us or our strategic partners or licensees;
negotiate third-party strategic alliances or licensing arrangements more effectively than us; and
take better advantage than us of other opportunities.
We are aware of only one drug, Rilutek, which was developed by Aventis Pharma AG, that has been approved by the FDA for the
treatment of ALS. Many companies are working to develop pharmaceuticals to treat ALS, including Aeolus Pharmaceuticals, Celgene
Corporation, Mitsubishi Tanabe Pharma Corporation, Ono Pharmaceuticals, Trophos SA, Knopp Neurosciences Inc., Faust
Pharmaceuticals SA, Oxford BioMedica plc, Phytopharm plc and Teva Pharmaceutical Industries Ltd., as well as RXi. ALS patients
often take over-the-counter supplements, including vitamin E, creatine and coenzyme Q10, or drugs such as lithium that are approved
for other indications. ALS belongs to a family of neurodegenerative diseases that includes Alzheimer’s, Parkinson’s and Huntington’s
diseases. Due to similarities between these diseases, a new treatment for one such disease potentially could be useful for treating
others. There are many companies producing and developing drugs used to treat neurodegenerative diseases other than ALS, including
Amgen, Inc., Biogen Idec, Boehringer Ingelheim, Cephalon, Inc., Ceregene, Inc., Elan Pharmaceuticals, plc, Forest Laboratories, Inc.,
H. Lundbeck A/S, Phytopharm plc, UCB Group and Wyeth.
18
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Current drug classes used to treat stroke include antiplatelet agents, anticoagulants, salycylates, neuroprotectants and thrombolytic
agents. Prescription antiplatelet agents include Aggrenox by Boehringer Ingelheim, Plavix by Sanofi-Aventis and Bristol-Myers
Squibb, and Ticlid by Roche Pharmaceuticals. Coumadin by Bristol-Myers Squibb and Jantoven by Upsher-Smith Laboratories are
branded forms of warfarin, an anticoagulant. Moreover, Salicylates, like aspirin, are commonly used to treat patients after stroke. In
Europe, Ferrer Grupo markets the neroprotectant, Somazina. Activase, also known as tissue plasminogen activator, or t-PA, is a
thrombolytic agent marketed by Genentech. Many new drug candidates are in development by pharmaceutical and biotech companies,
including GlaxoSmithKline, Indeveus Pharmaceuticals, Ipsen, Merck & Co., Neurobiological Technologies, Ono Pharmaceuticals,
PAION AG and Wyeth. In addition to drug therapy, companies such as Medtronic and Northstar Neurosciences are developing
neurostimulation medical devices to aid in recovery after stroke.
The wound care market is highly competitive, and there are many products available for treating skin wounds, including diabetic
foot ulcers. Prescription and over-the-counter products for the prevention and treatment of infections include topical anti-infectives,
such as Betadine, silver sulfadiazine, hydrogen peroxide, Dakin’s solution and hypochlorous acid, and topical antibiotics, such as
Neosporine, Mupirocin and Bacitracin. Skin substitute products include Apligraf, manufactured by Organogenesis, Inc., which is an
FDA-cleared product using human dermal and epidermal cells placed on a collagen matrix, for the treatment of both venous stasis and
diabetic foot ulcers, and Dermagraft, produced by Advanced BioHealing, Inc., which uses human derived dermal cells placed on a
polyglactin matrix and is FDA cleared to treat diabetic foot ulcers. In addition, a number of companies are working to develop
proprietary pharmaceuticals and cell-based therapies to treat diabetic wound healing, including Agennix, Inc., BioSyntech, Inc.,
CardioVascular BioTherapeutics, Inc., Cardium Therapeutics, Inc., Genentech Inc., KeraCure, Inc., King Pharmaceuticals, Inc.,
MacroChem Corporation, Oculus Innovative Sciences, Inc., Rovi Pharmaceutical Laboratories, SanuWave, Inc. and Wyeth.
Most of our competitors have substantially greater research and product development capabilities and financial, technical,
scientific, manufacturing, marketing, distribution and other resources than us.
We may be required to pay milestone and other payments relating to the commercialization of our products.
Our agreement by which we acquired rights to arimoclomol and our other molecular chaperone amplification product candidates
provides for milestone payments by us upon the occurrence of certain regulatory filings and approvals related to the acquired products.
In the event that we successfully develop arimoclomol or any of these other product candidates, these milestone payments could
aggregate as much as $3.7 million, with the most significant payments due upon the first commercialization of any of these products.
In addition, our agreement with the ALS Charitable Remainder Trust requires us to pay a one-percent royalty interest on worldwide
sales of arimoclomol for the treatment of ALS. Also, any future license, collaborative or other agreements we may enter into in
connection with our development and commercialization activities may require us to pay significant milestone, license and other
payments in the future.
We will rely upon third parties for the manufacture of our clinical product supplies.
We do not have the facilities or expertise to manufacture supplies of any of our product candidates, including arimoclomol or
iroxanadine. Accordingly, we are dependent upon contract manufacturers, or potential future strategic alliance partners, to
manufacture these supplies. We have manufacturing supply arrangements in place with respect to a portion of the clinical supplies
needed for the Phase II clinical program for arimoclomol for ALS and stroke recovery and for iroxanadine for diabetic ulcers.
However, we have no supply arrangements for the commercial manufacture of these product candidates or any manufacturing supply
arrangements for any other potential product candidates, and we may not be able to secure needed supply arrangements on attractive
terms, or at all. Our failure to secure these arrangements as needed could have a materially adverse effect on our ability to complete
the development of our products or to commercialize them.
We are subject to potential liabilities from clinical testing and future product liability claims.
If any of our products are alleged to be defective, they may expose us to claims for personal injury by patients in clinical trials of
our products or, if we obtain marketing approval and commercialize our products, by patients using our commercially marketed
products. Even if the commercialization of one or more of our products is approved by the FDA, users may claim that such products
caused unintended adverse effects. We currently do not carry product liability insurance covering the commercial marketing of our
product candidates. We obtained clinical trial insurance for our Phase IIa clinical trial and Phase IIb efficacy trial of arimoclomol for
the treatment of ALS, and we plan to seek to obtain similar insurance for any other clinical trials that we conduct, as well as liability
insurance for any products that we may market. However, we may not be able to obtain additional insurance in the amounts we seek,
if at all. In addition, any insurance maintained by us or our licensees may not prove adequate in the event of a claim against us. Even
19
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
if claims asserted against us are unsuccessful, they may divert management’s attention from our operations, and we may have to incur
substantial costs to defend such claims.
We may be unable to acquire products approved for marketing.
In the future, we may seek to acquire products from third parties that already are being marketed or have been approved for
marketing. We have not currently identified any of these products, however, and we do not have any prior experience in acquiring or
marketing products and may need to find third parties to market any products that we might acquire. We may also seek to acquire
products through a merger with one or more companies that own such products. In any such merger, the owners of our merger partner
could be issued or hold a substantial, or even controlling, amount of stock in our company or, in the event that the other company is
the surviving company, in that other company.
We use hazardous materials and must comply with environmental, health and safety laws and regulations, which can be
expensive and restrict how we do business.
Our research and development and manufacturing processes involve the controlled storage, use and disposal of hazardous
materials, including biological hazardous materials. We are subject to federal, state and local regulations governing the use,
manufacture, storage, handling and disposal of these materials and waste products. Although we believe that our safety procedures for
handling and disposing of these hazardous materials comply with the standards prescribed by law and regulation, we cannot
completely eliminate the risk of accidental contamination or injury from hazardous materials. In the event of an accident, we could be
held liable for any damages that result. We could incur significant costs to comply with current or future environmental laws and
regulations.
Risks Associated With Our Investment in RXi
The distribution of RXi common stock to our stockholders will be taxable to us.
On March 11, 2008, we distributed to our stockholders a total of approximately 4,526,624 shares of RXi common stock. We will
recognize gain for income tax purposes on the distribution of shares of RXi common stock in an amount equal to the excess of the fair
market value of the stock distributed over our basis. This gain will be included in determining whether we have current year earnings
and profits subject to taxation. Although we will ascribe a value to RXi shares in the distribution for tax purposes, our valuation will
not be binding on the Internal Revenue Service or any state taxation agency, which could ascribe a different valuation to the
distributed RXi shares. Based upon our anticipated loss from operations for 2008 and currently available loss carryforwards, we
expect to pay no taxes in connection with the distribution.
Our ownership interest in RXi may be diluted.
RXi has indicated that it has sufficient working capital to fund its currently planned expenditures into the second quarter of 2009.
RXi also anticipates that it will need to raise substantial amounts of money to fund a variety of future activities integral to the
development of its business. Under our agreement with RXi and its other current stockholders, with some exceptions, we will have
preemptive rights to acquire a portion of any new securities sold or issued by RXi so as to maintain our percentage ownership of RXi.
Depending upon the terms and provisions of any proposed sale of new securities by RXi, our financial condition and other factors, we
may be unwilling or unable to exercise our preemptive rights. If RXi raises funds through the issuance of additional equity securities,
therefore, our percentage ownership interest in RXi may be diluted.
We may be required to dispose of some of our remaining RXi shares, and may not be able to do so on attractive terms.
As of March 11, 2008, we owned approximately 6,268,881 shares of common stock of RXi, or approximately 49% of the
outstanding RXi common stock. We may be deemed to be an “investment company” within the meaning of the Investment Company
Act of 1940, and become subject to the stringent regulations applicable to investment companies, if at any time we own or propose to
acquire investment securities having a value that exceeds 40% of our total assets. Any RXi shares held by us will generally constitute
investment securities, and accordingly, if the value of the RXi’s shares we own at any time, when taken together with the value of any
other investment securities we then hold, approaches 40% of the value of our assets, then we would likely seek to sell or otherwise
dispose of some of our RXi shares in order to avoid becoming an inadvertent investment company.
20
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
If it becomes necessary or advisable for us to sell our RXi shares, we may have to sell RXi shares pursuant to Rule 144 under the
Securities Act, which includes certain manner of sale and volume limitations, or negotiate private sales with third parties who are
willing to buy those shares. We may be unable to sell or divest of RXi shares at attractive prices, if at all. In addition, any sales or
other disposition of RXi shares by us, or the possibility of such sales or disposition, could adversely affect the market price of our RXi
shares.
RXi retains discretion over its use of the funds that we have provided to it.
All funds previously provided by us to RXi may be used by RXi in any manner its management deems appropriate. None of these
uses may yield a significant or any return at all for RXi stockholders, including us.
We do not and will not control RXi, and the officers, directors and other RXi stockholders may have interests that are different
from ours.
Although we currently own a significant portion of RXi’s outstanding common stock, we do not control its management or
operations. RXi has its own board of directors and management, who are responsible for the affairs and policies of RXi and its
development plans. We have entered into letter agreements with the University of Massachusetts Medical School, or UMMS, RXi and
RXi’s other founding stockholders under which we agree to vote our shares of RXi common stock for the election of directors of RXi
and to take other actions to ensure that a majority of RXi’s board of directors are independent of us. The other stockholders of RXi
may have interests that are different from ours, and RXi may engage in actions in connection with its business and operations that we
believe are not in our best interests.
Products developed by RXi could eventually compete with our products for ALS, type 2 diabetes, obesity and other disease
indications.
RXi is focusing its initial efforts on developing an RNAi therapeutics for the treatment of a specific form of ALS caused by a
defect in the SOD1 gene. Although we are developing arimoclomol for treatment for all forms of ALS, it is possible that products
developed by RXi for the treatment of ALS could compete with ALS products that we may develop. RXi also plans to pursue the
development of RNAi therapeutics for the treatment of other neurodegenerative diseases and type 2 diabetes, which could compete
with products that we may develop for the treatment of these diseases. The potential commercial success of any products that we may
develop for these and other diseases may be adversely affected by competing products that RXi may develop.
Risks Associated with Our Common Stock
Our anti-takeover provisions may make it more difficult to change our management, or may discourage others from acquiring
us, and thereby adversely affect stockholder value.
We have a stockholder rights plan and provisions in our bylaws that are intended to protect our stockholders’ interests by
encouraging anyone seeking control of our company to negotiate with our board of directors. These provisions may discourage or
prevent a person or group from acquiring us without the approval of our board of directors, even if the acquisition would be beneficial
to our stockholders.
We have a classified board of directors, which means that at least two stockholder meetings, instead of one, will be required to
effect a change in the majority control of our board of directors. This applies to every election of directors, not just an election
occurring after a change in control. The classification of our board increases the amount of time it takes to change majority control of
our board of directors and may cause potential acquirers to lose interest in a potential purchase of us, regardless of whether our
purchase would be beneficial to us or our stockholders. The additional time and cost to change a majority of the members of our board
of directors makes it more difficult and may discourage our existing stockholders from seeking to change our existing management in
order to change the strategic direction or operational performance of our company.
Our bylaws provide that directors may only be removed for cause by the affirmative vote of the holders of at least a majority of the
outstanding shares of our capital stock then entitled to vote at an election of directors. This provision prevents stockholders from
removing any incumbent director without cause. Our bylaws also provide that a stockholder must give us at least 120 days notice of a
proposal or director nomination that such stockholder desires to present at any annual meeting or special meeting of stockholders.
Such provision prevents a stockholder from making a proposal or director nomination at a stockholder meeting without us having
advance notice of that proposal or director nomination. This could make a change in control more difficult by providing our directors
21
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
with more time to prepare an opposition to a proposed change in control. By making it more difficult to remove or install new
directors, these bylaw provisions may also make our existing management less responsive to the views of our stockholders with
respect to our operations and other issues such as management selection and management compensation.
We are also subject to the anti-takeover provisions of Section 203 of the Delaware General Corporation Law, which may also
prevent or delay a takeover of us that may be beneficial to you.
Our outstanding options and warrants and the availability for resale of our shares issued in our private financings may
adversely affect the trading price of our common stock.
As of December 31, 2007, there were outstanding stock options and warrants to purchase approximately 19.0 million shares of our
common stock at a weighted-average exercise price of $2.00 per share. Our outstanding options and warrants could adversely affect
our ability to obtain future financing or engage in certain mergers or other transactions, since the holders of options and warrants can
be expected to exercise them at a time when we may be able to obtain additional capital through a new offering of securities on terms
more favorable to us than the terms of outstanding options and warrants. For the life of the options and warrants, the holders have the
opportunity to profit from a rise in the market price of our common stock without assuming the risk of ownership. The issuance of
shares upon the exercise of outstanding options and warrants will also dilute the ownership interests of our existing stockholders.
Many of our outstanding warrants contain anti-dilution provisions pertaining to dividends or distributions with respect to our common
stock. Our outstanding warrants to purchase approximately 1.5 million shares also contain anti-dilution provisions that are triggered
upon any issuance of securities by us below the prevailing market price of our common stock, and our outstanding warrants to
purchase approximately 11.5 million shares contain anti-dilution provisions that are triggered upon any dividend of cash or property,
including our recent distribution to our stockholders of approximately 36% of the common stock of RXi on March 11, 2008 that will
require us to reduce the exercise price of those warrants. In the event that these anti-dilution provisions are triggered by us in the
future, we would be required to reduce the exercise price, and increase the number of shares underlying, those warrants, which would
have a dilutive effect on our stockholders.
We have registered with the SEC the resale by the holders of all or substantially all shares of our common stock issuable upon
exercise of our outstanding options and warrants. The availability of these shares for public resale, as well as actual resales of these
shares, could adversely affect the trading price of our common stock.
We may issue preferred stock in the future, and the terms of the preferred stock may reduce the value of our common stock.
We are authorized to issue shares of preferred stock in one or more series. Our board of directors may determine the terms of future
preferred stock offerings without further action by our stockholders. If we issue preferred stock, it could affect your rights or reduce
the value of our outstanding common stock. In particular, specific rights granted to future holders of preferred stock may include
voting rights, preferences as to dividends and liquidation, conversion and redemption rights, sinking fund provisions, and restrictions
on our ability to merge with or sell our assets to a third party.
We may experience volatility in our stock price, which may adversely affect the trading price of our common stock.
The market price of our common stock has ranged from $0.87 to $5.49 per share since January 1, 2006, and it may continue to
experience significant volatility from time to time. Factors such as the following may affect such volatility:
•
•
•
•
•
•
•
announcements of regulatory developments or technological innovations by us or our competitors;
changes in our relationship with our licensors and other strategic partners;
changes in our ownership of or other relationships with RXi;
our quarterly operating results;
litigation involving or affecting us;
shortfalls in our actual financial results compared to our guidance or the forecasts of stock market analysts;
developments in patent or other technology ownership rights;
22
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
•
•
•
acquisitions or strategic alliances by us or our competitors;
public concern regarding the safety of our products; and
government regulation of drug pricing.
Other factors which may affect our stock price are general changes in the economy, the financial markets or the pharmaceutical or
biotechnology industries.
We do not intend to pay cash dividends on our common stock in the foreseeable future.
We have not declared or paid any cash dividends on our common stock or other securities, and we currently do not anticipate
paying any cash dividends in the foreseeable future. Because we do not anticipate paying cash dividends for the foreseeable future, our
stockholders will not realize a return on their investment in our common stock except to the extent of any appreciation in the value of
our common stock. Our common stock may not appreciate in value, or may decline in value.
Item 2. PROPERTIES
Our headquarters are located in leased facilities in Los Angeles, California. The lease covers approximately 4,700 square feet of
office space and expires in June 2008. We have notified our landlord of our exercise of an option to extend the term of the lease for an
additional three years, and are in the process of negotiating that lease extension.
We also lease approximately 10,000 square feet of office and laboratory space in San Diego, California. The lease expires in
July 2010, and we have the option to extend the lease for up to two additional three-year terms. Our headquarters and laboratory
facilities are sufficient for our current purposes.
Item 3. LEGAL PROCEEDINGS
We are occasionally involved in claims arising in the normal course of business. As of March 28, 2008, there were no such claims
that we expect, individually or in the aggregate, to have a material adverse affect on us.
23
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
PART II
Item 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY SECURITIES
Market Information
Our common stock is traded on The NASDAQ Capital Market under the symbol “CYTR.” The following table sets forth the high
and low sale prices for our common stock for the periods indicated as reported by The NASDAQ Capital Market:
Fiscal Year 2007:
Fourth Quarter
Third Quarter
Second Quarter
First Quarter
Fiscal Year 2006:
Fourth Quarter
Third Quarter
Second Quarter
First Quarter
Holders
High
$4.70
$4.09
$5.36
$5.49
$2.04
$1.94
$2.30
$1.92
Low
$2.60
$3.00
$2.97
$1.74
$1.21
$0.87
$1.06
$1.01
On March 28, 2008, there were approximately 760 holders of record of our common stock. The number of record holders does not
reflect the number of beneficial owners of our common stock for whom shares are held by brokerage firms and other nominees.
Dividends
We have not paid any dividends since our inception and do not contemplate paying any cash dividends in the foreseeable future.
24
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Comparison of Cumulative Total Returns
The following line graph presentation compares cumulative total stockholder returns of CytRx with The NASDAQ Stock Market
Index and the NASDAQ Pharmaceutical Index (the “Peer Index”) for the five-year period from December 31, 2002 to December 31,
2007. The graph and table assume that $100 was invested in each of CytRx’s common stock, the NASDAQ Stock Market Index and
the Peer Index on December 31, 2002, and that all dividends were reinvested. This data was furnished by Zacks Investment Research
and the Center for Research and Security Prices.
Comparison of Cumulative Total Returns
CytRx Corporation
NASDAQ Stock Market Index
NASDAQ Pharmaceutical Index
2003
744
151
147
25
2004
560
165
156
December 31,
2005
412
168
172
2006
764
186
168
2007
1,136
211
177
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Equity Compensation Plans
The following table sets forth certain information as of December 31, 2007, regarding securities authorized for issuance under our
equity compensation plans:
Plan Category
Equity compensation plans approved by our security
holders:
1994 Stock Option Plan
1998 Long-Term Incentive Plan
2000 Long-Term Incentive Plan
Equity compensation plans not approved by our security
holders:
Outstanding warrants(1)
Total
(1)
(a)
Number of Securities
to be Issued Upon
Exercise of
Outstanding Options,
Warrants and Rights
(b)
Weighted-Average
Exercise Price of
Outstanding Options,
Warrants and Rights
®
Number of Securities
Remaining Available
for Issuance Under
Equity
Compensation
Plans (Excluding
Securities Reflected
in Column (a))
9,167
100,041
5,999,300
13,031,515
19,140,023
$
$
1.00
1.02
2.31
1.87
2.00
—
29,517
2,192,000
—
2,221,517
The warrants shown were issued in discreet transactions
from time to time as compensation for services rendered
by consultants, advisors or other third parties, and do
not include warrants sold in private placement
transactions. The material terms of such warrants were
determined based upon arm’s-length negotiations with
the service providers. The warrant exercise prices
approximated the market price of our common stock at
or about the date of grant, and the warrant terms range
from five to ten years from the grant date. The warrants
contain customary anti-dilution adjustments in the event
of a stock split, reverse stock split, reclassification or
combination of our outstanding common stock and
similar events and certain of the warrants contain
anti-dilution adjustments triggered by other corporate
events, such as dividends and sales of equity below
market price.
Item 6. SELECTED FINANCIAL DATA
General
The following selected financial data are derived from our audited financial statements. Our financial statements for 2007, 2006
and 2005 have been audited by BDO Seidman, LLP, our independent registered public accounting firm. These historical results do not
necessarily indicate future results. When you read this data, it is important that you also read our financial statements and related
notes, as well as the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Risk Factors”
sections of this Annual Report. Financial information provided below has been rounded to the nearest thousand.
2007
2006
2005
2004
2003
Statement of Operations Data:
Revenues
Service revenue
Licensing revenue
Grant revenue
Total revenues
Deemed dividend for anti-dilution
adjustments made to outstanding
common stock warrants
Source: CYTRX CORP, 10-K, April 01, 2008
$
$
7,242,000
101,000
116,000
7,459,000
$
$
1,859,000
101,000
106,000
2,066,000
$
$
83,000
101,000
—
184,000
$
$
—
428,000
—
428,000
$
$
—
94,000
—
94,000
—
$ (21,890,000)
(488,000)
$ (17,240,000)
(1,076,000)
$ (16,169,000)
—
$ (16,392,000)
—
$ (17,845,000)
Net loss applicable to common
stockholders
Basic and diluted loss per share
applicable to common stock
Balance Sheet Data:
$
(0.26)
$
(0.25)
$
(0.28)
$
(0.48)
$
(0.65)
26
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Cash, cash equivalents and short-term
investments
Total assets
Total stockholders’ equity
Factors Affecting Comparability
2007
2006
2005
2004
2003
$ 60,450,000
$ 64,146,000
$ 40,224,000
$ 30,381,000
$ 31,636,000
$ 5,150,000
$ 8,299,000
$ 9,939,000
$ 7,208,000
$ 1,988,000
$ 5,049,000
$ 1,595,000
$ 11,644,000
$ 12,324,000
$ 10,193,000
On April 19, 2007, we completed a $37.0 million private equity financing in which we issued 8.6 million shares of our common
stock at $4.30 per share. Net of investment banking commissions, legal, accounting and other expenses related to the transaction, we
received approximately $34.2 million of proceeds.
In August 2006, we received approximately $24.5 million in marketable securities (which were sold by us for approximately
$24.3 million) from the privately-funded ALS Charitable Remainder Trust, or ALSCRT, in exchange for our commitment to continue
research and development of arimoclomol and other potential treatments for ALS and a one percent royalty from worldwide sales of
arimoclomol. We have recorded the value received under the arrangement as deferred service revenue. We are recognizing the service
revenue using the proportional performance method of revenue recognition, under which service revenue will be recognized as a
percentage of actual research and development expense. During 2007 and 2006, we recognized approximately $7.2 million and
$1.8 million of service revenue related to this transaction, respectively.
Our Statements of Operations as of and for the years ended December 31, 2007 and 2006 reflect the impact of Statement of
Financial Accounting Standards 123(R), “Share Based Payment” (“SFAS123(R)”). In accordance with the modified prospective
transition method, our results of operations for prior periods have not been restated to reflect the impact of SFAS 123(R). Share-based
compensation expense recognized under SFAS 123(R) for the years ended December 31, 2007 and 2006 were $2.7 million and
$1.2 million, respectively. As of December 31, 2007, there was $3.4 million of unrecognized compensation cost related to outstanding
options that is expected to be recognized as a component of our operating expenses through 2010. Compensation costs will be
adjusted for future changes in estimated forfeitures.
On March 2, 2006, we completed a $13.4 million private equity financing in which we issued 10,650,795 shares of our common
stock and warrants to purchase an additional 6,070,953 shares of our common stock at an exercise price of $1.54 per share. Net of
investment banking commissions, legal, accounting and other expenses related to the transaction, we received approximately $12.4
million of proceeds.
In January 2005, we completed a $21.3 million private equity financing in which we issued 17,334,494 shares of our common
stock and warrants to purchase an additional 8,667,247 shares of our common stock at an exercise price of $2.00 per share. Net of
investment banking commissions, legal, accounting and other fees related to the transaction, we received proceeds of approximately
$19.4 million.
In connection with our adjustment to the exercise terms of certain outstanding warrants to purchase common stock on March 2,
2006 and January 20, 2005, we recorded deemed dividends of $488,000 and $1.1 million, respectively. These deemed dividends are
reflected as an adjustment to net loss for the first quarter of 2006 and the year ended 2005 to arrive at net loss applicable to common
stockholders on the consolidated statement of operations and for purposes of calculating basic and diluted earnings per shares.
Item 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations should be read together with the
discussion under “Selected Financial Data” and our consolidated financial statements included in this Annual Report. This discussion
contains forward-looking statements, based on current expectations and related to future events and our future financial performance,
that involve risks and uncertainties. Our actual results may differ materially from those anticipated in these forward-looking
statements as a result of many important factors, including those set forth under the caption “Risk Factors” and elsewhere in this
Annual Report.
27
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Overview
CytRx Corporation
We are a clinical-stage biopharmaceutical company engaged in developing human therapeutic products based primarily upon our
small-molecule molecular chaperone amplification technology. Molecular chaperone proteins occur normally in human cells and are
key components of the body’s defenses against potentially toxic mis-folded cellular proteins. Since damaged toxic proteins called
aggregates are thought to play a role in many diseases, we believe that amplification of molecular chaperone proteins could have
therapeutic efficacy for a broad range of indications. Currently, we are using our chaperone amplification technology to develop
treatments for neurodegenerative disorders and diabetic complications.
We have relied primarily upon selling equity securities and upon proceeds received upon the exercise of options and warrants and,
to a much lesser extent, upon payments from our strategic partners and licensees, to generate funds needed to finance our business and
operations.
At December 31, 2007, we had cash, cash equivalents and short-term investments of $60.4 million, including $11.7 million held by
RXi. We believe that CytRx’s current resources will be sufficient to support our currently planned level of operations into the second
half of 2009. This estimate is based, in part, upon our currently projected expenditures for 2008 of approximately $29.2 million,
including approximately $5.1 million for our clinical program for arimoclomol for ALS and related studies, approximately
$6.4 million for our planned Phase II clinical trial of arimoclomol in stroke patients and Phase II clinical trial of iroxanadine for
diabetic ulcers, approximately $9.2 million for equipping and operating our research laboratory in San Diego, California, and
approximately $8.5 million for other general and administrative expenses. Management believes that RXi’s current resources will be
sufficient to support its currently planned level of operations into the second quarter of 2009. As described in the risk factor above,
these projected expenditures are based upon numerous assumptions and subject to many uncertainties, and our actual expenditures
may be significantly different from these projections. We have no significant revenue, and we expect to have no significant revenue
and to continue to incur significant losses over the next several years. Our net losses may increase from current levels primarily due to
expenses related to our ongoing and planned clinical trials, research and development programs, possible technology acquisitions, and
other general corporate activities. We anticipate, therefore, that our operating results will fluctuate for the foreseeable future and
period-to-period comparisons should not be relied upon as predictive of the results in future periods.
Our Separation from RXi Pharmaceuticals Corporation
RXi Pharmaceuticals Corporation, or RXi, was founded in April 2006 by us and four researchers in the field of RNAi, including
Dr. Craig Mello, recipient of the 2006 Nobel Prize for Medicine for his co-discovery of RNAi. RNAi is a naturally occurring
mechanism for the regulation of gene expression that has the potential to selectively inhibit the activity of any human gene. As
evidenced by Kim and Rossi’s review published in March 2007 in Nature Reviews Genetics, it is believed that this inhibition may
potentially treat human diseases by “silencing” genes that lead to disease.
In January 2007, we transferred to RXi substantially all of our RNAi-related technologies and assets, and RXi began operating on a
stand-alone basis for the purpose of accelerating the discovery of RNAi therapeutics previously sponsored by us. RXi’s initial focus is
on developing RNAi-based product candidates for treating neurological and metabolic disorders and cancer.
Until recently, we owned approximately 85% of the outstanding shares of common stock of RXi and our consolidated financial
statements, including our consolidated financial statements as of and for the year ended December 31, 2007 included in this Annual
Report, reflected 100% of the assets, liabilities and results of operations of RXi, and the interest of the minority shareholders was
recorded as “minority interest.” On February 14, 2008, our board of directors declared a dividend, payable to our stockholders as of
March 6, 2008, the record date, of one share of RXi common stock for each approximately 20.05 shares of our common stock held by
such stockholders. The dividend was paid on March 11, 2008. The RXi shares distributed by us to our stockholders constituted
approximately 36% of the currently outstanding RXi shares, so we currently own approximately 49% of the outstanding shares of RXi
common stock.
For periods beginning with the first quarter of 2008, if CytRx owns more than 20% but less than 50% of the outstanding shares of
RXi, CytRx will account for its investment in RXi using the equity method. Under the equity method, CytRx will record its pro-rata
share of the gains or losses of RXi against its historical basis investment in RXi.
Research and Development
Expenditures for research and development activities related to continuing operations were $18.8 million, $9.8 million and
$9.1 million for the years ended December 31, 2007, 2006, and 2005, respectively, with research and development expenses
representing approximately 55%, 50% and 58% of our total expenses for the years ended December 31, 2007, 2006 and 2005,
respectively.
28
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Research and development expenses are further discussed below under “Critical Accounting Policies and Estimates” and “Results of
Operations.”
Our currently projected expenditures for 2008 include approximately $5.1 million for our clinical program for arimoclomol for
ALS and related studies, approximately $6.4 million for our planned clinical trial of arimoclomol in stroke patients and our clinical
trial of iroxanadine for diabetic ulcers. The actual cost of our clinical programs could differ significantly from our current projections
due to any additional requirements or delays imposed by the FDA in connection with our planned trials, or if actual costs are higher
than current management estimates for other reasons. In the event that actual costs of our clinical program, or any of our other ongoing
research activities, are significantly higher than our current estimates, we may be required to significantly modify our planned level of
operations.
There is a risk that any drug discovery and development program may not produce revenue because of the risks inherent in drug
discovery and development. Moreover, there are uncertainties specific to any new field of drug discovery, including our molecular
chaperone amplification technology and RXi’s RNAi-related technologies. The successful development of any product candidate is
highly uncertain. We cannot reasonably estimate or know the nature, timing and costs of the efforts necessary to complete the
development of, or the period in which material net cash inflows are expected to commence from any product candidate, due to the
numerous risks and uncertainties associated with developing drugs, including the uncertainty of:
•
•
•
•
•
•
•
•
•
•
our ability to advance product candidates into pre-clinical and clinical trials;
the scope, rate and progress of our pre-clinical trials and other research and development activities;
the scope, rate of progress and cost of any clinical trials we commence;
the cost of filing, prosecuting, defending and enforcing any patent claims and other intellectual property rights;
future clinical trial results;
the terms and timing of any collaborative, licensing and other arrangements that we may establish;
the cost and timing of regulatory approvals;
the cost and timing of establishing sales, marketing and distribution capabilities;
the cost of establishing clinical and commercial supplies of our product candidates and any products that we may develop; and
the effect of competing technological and market developments.
Any failure to complete any stage of the development of our products in a timely manner could have a material adverse effect on
our operations, financial position and liquidity. A discussion of the risks and uncertainties associated with our business is set forth in
the “Risk Factors” section of this Annual Report.
Critical Accounting Policies and Estimates
Management’s discussion and analysis of our financial condition and results of operations are based on our consolidated financial
statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America.
The preparation of these financial statements requires management to make estimates and judgments that affect the reported amounts
of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. On an ongoing basis,
management evaluates its estimates, including those related to revenue recognition, stock options, impairment of long-lived assets,
including finite lived intangible assets, accrued liabilities and certain expenses. We base our estimates on historical experience and on
various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making
judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ
materially from these estimates under different assumptions or conditions.
29
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Our significant accounting policies are summarized in Note 2 of the Notes to Financial Statements included in this Annual Report.
We believe the following critical accounting policies are affected by our more significant judgments and estimates used in the
preparation of our consolidated financial statements:
Revenue Recognition
Biopharmaceutical revenues consist of license fees from strategic alliances with pharmaceutical companies as well as service and
grant revenues. Service revenues consist of contract research and laboratory consulting. Grant revenues consist of government and
private grants.
Monies received for license fees are deferred and recognized ratably over the performance period in accordance with Staff
Accounting Bulletin (“SAB”) No. 104, Revenue Recognition. Milestone payments will be recognized upon achievement of the
milestone as long as the milestone is deemed substantive and we have no other performance obligations related to the milestone and
collectability is reasonably assured, which is generally upon receipt, or recognized upon termination of the agreement and all related
obligations. Deferred revenue represents amounts received prior to revenue recognition.
Revenues from contract research, government grants, and consulting fees are recognized over the respective contract periods as the
services are performed, provided there is persuasive evidence or an arrangement, the fee is fixed or determinable and collection of the
related receivable is reasonably assured. Once all conditions of the grant are met and no contingencies remain outstanding, the revenue
is recognized as grant fee revenue and an earned but unbilled revenue receivable is recorded.
In August 2006, we received approximately $24.3 million in proceeds from the privately-funded ALS Charitable Remainder Trust
(“ALSCRT”) in exchange for the commitment to continue research and development of arimoclomol and other potential treatments
for ALS and a one percent royalty in the worldwide sales of arimoclomol. Under the arrangement, we retain the rights to any products
or intellectual property funded by the arrangement and the proceeds of the transaction are non-refundable. Further, the ALSCRT has
no obligation to provide any further funding to us. We have concluded that due to the research and development components of the
transaction that it is properly accounted for under Statement of Financial Accounting Standards No. 68, Research and Development
Arrangements. Accordingly, we have recorded the value received under the arrangement as deferred service revenue and will
recognize service revenue using the proportional performance method of revenue recognition, meaning that service revenue is
recognized on a dollar-for-dollar basis for each dollar of expense incurred for the research and development of arimoclomol and other
potential ALS treatments. We believe that this method best approximates the efforts expended related to the services provided. We
adjust our estimates of expense incurred for this research and development on a quarterly basis. For the years ended December 31,
2007 and 2006, we recognized approximately $7.2 million and $1.8 million, respectively, of service revenue related to this transaction.
Any significant change in ALS related research and development expense in any particular quarterly or annual period will result in a
change in the recognition of revenue for that period and consequently affect the comparability or revenue from period to period.
The amount of “deferred revenue, current portion” is the amount of deferred revenue that is expected to be recognized in the next
twelve months and is subject to fluctuation based upon management’s estimates. Management’s estimates include an evaluation of
what pre-clinical and clinical trials are necessary, the timing of when trials will be performed and the estimated clinical trial expenses.
These estimates are subject to changes and could have a significant effect on the amount and timing of when the deferred revenues are
recognized.
Research and Development Expenses
Research and development expenses consist of costs incurred for direct and overhead-related research expenses and are expensed
as incurred. Costs to acquire technologies, including licenses, that are utilized in research and development and that have no
alternative future use are expensed when incurred. Technology developed for use in its products is expensed as incurred until
technological feasibility has been established.
Clinical Trial Expenses
Clinical trial expenses, which are included in research and development expenses, include obligations resulting from our contracts
with various clinical research organizations in connection with conducting clinical trials for our product candidates. We recognize
expenses for these activities based on a variety of factors, including actual and estimated labor hours, clinical site initiation activities,
patient enrollment rates, estimates of external costs and other activity-based factors. We believe that this method best approximates the
30
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
efforts expended on a clinical trial with the expenses we record. We adjust our rate of clinical expense recognition if actual results
differ from our estimates. If our estimates are incorrect, clinical trial expenses recorded in any particular period could vary.
Stock-based Compensation
Our share-based employee compensation plans are described in Note 12 of the Notes to our Financial Statements. Effective
January 1, 2006, we adopted the provisions of SFAS 123(R), “Share-Based Payment.” SFAS 123(R), which requires that companies
recognize compensation expense associated with stock option grants and other equity instruments to employees in the financial
statements. SFAS 123(R) applies to all grants after the effective date and to the unvested portion of stock options outstanding as of the
effective date. We adopted SFAS 123(R) using the modified-prospective method and use the Black-Scholes valuation model for
valuing share-based payments. We will continue to account for transactions in which services are received in exchange for equity
instruments based on the fair value of such services received from non-employees, in accordance with SFAS 123(R), Emerging Issues
Task Force Issue No. 96-18 (“EITF 96-18”), Accounting for Equity Instruments that are Issued to other than Employees for Acquiring,
or in Conjunction with Selling Goods or Services and EITF 00-18, Accounting Recognition for Certain Transactions involving Equity
Instruments Granted to Other Than Employees, as amended.
Our Statement of Operations as of and for the years ended December 31, 2007 and 2006 reflects the impact of SFAS 123(R). In
accordance with the modified prospective transition method, our results of operations for prior periods have not been restated to reflect
the impact of SFAS 123(R). Prior to January 1, 2006, we accounted for share-based compensation under the recognition and
measurement provisions of Accounting Principles Board No. 25, Accounting for Stock Issued to Employees (“APB 25”), and related
interpretations for all awards granted to employees. Under APB 25, when the exercise price of options granted to employees under
these plans equals or exceeds the market price of the common stock on the date of grant, no compensation expense is recorded. When
the exercise price of options granted to employees under these plans is less than the market price of the common stock on the date of
grant, compensation expense is recognized over the vesting period.
Non-employee share-based compensation charges generally are amortized over the vesting period on a straight-line basis. In certain
circumstances, option grants to non-employees are immediately vested and have no future performance requirements by the
non-employee and the total share-based compensation charge is recorded in the period of the measurement date.
The fair value of each CytRx and RXi common stock option grant is estimated using the Black-Scholes option pricing model,
which uses certain assumptions related to risk-free interest rates, expected volatility, expected life of the common stock options and
future dividends. Compensation expense is recorded based upon the value derived from the Black-Scholes option pricing model, based
on an expected forfeiture rate that is adjusted for actual experience. If our Black-Scholes option pricing model assumptions or our
actual or estimated forfeiture rate are different in the future, that could materially affect compensation expense recorded in future
periods.
Impairment of Long-Lived Assets
We review long-lived assets, including finite lived intangible assets, for impairment on an annual basis, as of December 31, or on
an interim basis if an event occurs that might reduce the fair value of such assets below their carrying values. An impairment loss
would be recognized based on the difference between the carrying value of the asset and its estimated fair value, which would be
determined based on either discounted future cash flows or other appropriate fair value methods. If our estimates used in the
determination of either discounted future cash flows or other appropriate fair value methods are not accurate as compared to actual
future results we may be required to record an impairment charge.
Earnings Per Share
Basic and diluted loss per common share are computed based on the weighted average number of common shares outstanding.
Common share equivalents (which consist of options and warrants) are excluded from the computation of diluted loss per share since
the effect would be antidilutive. Common share equivalents which could potentially dilute basic earnings per share in the future, and
which were excluded from the computation of diluted loss per share, totaled approximately 17.1 million shares, 30.2 million shares
and 24.7 million shares at December 31, 2007, 2006 and 2005, respectively. In connection with our adjustment to the exercise terms of
certain outstanding warrants to purchase common stock on March 2, 2006 and January 20, 2005, we recorded deemed dividends of
$488,000 and $1.1 million, respectively. These deemed dividends are reflected as an adjustment to net loss for the first quarter of 2006
and the year ended 2005 to arrive at net loss applicable to common stockholders on the consolidated statement of operations and for
purposes of calculating basic and diluted earnings per shares.
31
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Quarterly Financial Data
The following table sets forth unaudited consolidated statements of operations data for each quarter during our most recent two
fiscal years. This quarterly information has been derived from our unaudited consolidated financial statements and, in the opinion of
management, includes all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation of the
information for the periods covered. The quarterly financial data should be read in conjunction with our consolidated financial
statements and related notes. The operating results for any quarter are not necessarily indicative of the operating results for any future
period.
2007
Total revenues
Net loss
Deemed dividend for anti-dilution adjustments made to
outstanding common stock warrants
Net loss applicable to common stockholders
Basic and diluted loss per share applicable to common
stock
2006
Total revenues
Net loss
Deemed dividend for anti-dilution adjustments made to
outstanding common stock warrants
Net loss applicable to common stockholders
Basic and diluted loss per share applicable to common
stock
March 31
Quarters Ended
June 30
September 30
(In thousands, except per share data)
December 31
$
$
$
$
$
$
1,563
(4,546)
—
(4,546)
(0.06)
61
(4,166)
(488)
(4,654)
(0.07)
$
$
$
$
$
$
2,371
(6,285)
—
(6,285)
(0.07)
—
(5,465)
—
(5,465)
(0.08)
$
$
$
$
$
$
2,046
(4,597)
—
(4,597)
(0.05)
776
(2,972)
—
(2,972)
(0.04)
$
$
$
$
$
$
1,479
(6,462)
—
(6,462)
(0.07)
1,229
(4,148)
—
(4,148)
(0.06)
Quarterly and yearly loss per share amounts are computed independently of each other. Therefore, the sum of the per share
amounts for the quarters may not equal the per share amounts for the year. In 2006, we adopted SFAS 123(R), and in 2007 and 2006
we incurred $2.7 million and $1.2 million, respectively, in employee non-cash compensation expenses. No corresponding expense was
recorded in 2005.
In connection with our adjustment to the exercise terms of certain outstanding warrants to purchase common stock on March 2,
2006 and January 20, 2005, we recorded deemed dividends of $488,000 and $1.1 million, respectively. These deemed dividends are
reflected as an adjustment to net loss for the first quarter of 2006 and the year ended 2005 to arrive at net loss applicable to common
stockholders on the consolidated statements of operations and for purposes of calculating basic and diluted earnings per shares.
Fourth Quarter Adjustment
During the fourth quarter of 2007, the Company recorded adjustments for: (i) additional compensation expense of $236,000 related
to previously granted non-employee stock options, (ii) additional compensation expense of $350,000 related to stock options
previously granted to Directors and (iii) additional general and administrative expense of $192,000 related to legal fees rendered
during the third quarter. Management concluded the effect of these adjustments was not material to any previously reported quarterly
period.
Liquidity and Capital Resources
General
At December 31, 2007, we had cash, cash equivalents and short-term investments of $60.4 million, including $11.7 million held by
RXi) compared to $30.4 million at December 31, 2006. Our working capital totaled $47.4 million and our total assets were
$64.4 million at December 31, 2007, compared to $20.3 million and $31.6 million, respectively, at December 31, 2006. As of
March 28, 2008, we also had received approximately $1.0 million in connection with the exercise of warrants and options since
December 31, 2007.
We have relied primarily upon selling equity securities and upon proceeds received upon the exercise of options and warrants and,
to a much lesser extent, upon payments from our strategic partners and licensees, to generate funds needed to finance our business and
operations. We believe that our current resources will be sufficient to support our currently planned level of operations into the second
half of 2009. This estimate is based, in part, upon our currently projected expenditures for 2008 of approximately $29.2 million,
including approximately $5.1 million for our clinical program for arimoclomol for ALS and related studies, approximately
$6.4 million for our planned Phase II clinical trial of arimoclomol in stroke patients and Phase II clinical trial of iroxanadine for
diabetic ulcers, approximately $9.2 million for equipping and operating our research laboratory in San Diego, California, and
Source: CYTRX CORP, 10-K, April 01, 2008
approximately $8.5 million for other general and administrative expenses. Management believes that RXi’s current resources will be
sufficient to support its currently planned level of operations into the second quarter of 2009. We anticipate it will take a minimum of
32
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
three years and possibly longer for us to generate recurring revenue, and we will be dependent on obtaining future financing until such
time, if ever, as we can generate significant recurring revenue. We have no commitments from third parties to provide us with any
additional future financing, and may not be able to obtain future financing on favorable terms, or at all.
Discussion of Operating, Investing and Financing Activities
Net loss for the year ended December 31, 2007 was $21.9 million, and cash used for operating activities for that period was
$22.4 million. The net loss for the year reflects $7.2 million of non-cash revenue recognized under the 2006 agreement with ALSCRT
and $3.5 million for stock option and warrant expense.
Net loss for the year ended December 31, 2006 was $16.8 million, and cash provided from operating activities for that period was
$9.4 million. The cash provided from operating activities includes net proceeds of $24.3 million received from ALSCRT reflected in
August 2006 in connection with the sale of a one-percent royalty interest in our worldwide sales of arimoclomol for ALS. Reflected in
the net loss of $16.8 million is $1.8 million of revenue recognized in 2006 in connection with that sale. The remaining $22.5 million
of the net proceeds from that sale were recorded as deferred revenues. Other non-cash items included in our net loss necessary to
reconcile cash provided from operating activities include $1.7 million in stock option expense related to options granted to employees
and consultants, of which $1.2 million of expenses for employee options recorded under SFAS 123(R), which we adopted in 2006,
and accordingly no corresponding amount was recorded in earlier periods.
Our net loss for the year ended December 31, 2005 was $15.1 million, which resulted in net cash used in operating activities of
$14.5 million. Adjustments to reconcile net loss to net cash used in operating activities for the year ended December 31, 2005 were
primarily $586,000 of stock option expense related to options granted to consultants, as well as a net change in assets and liabilities of
$210,000 offset by the recording of $217,000 in depreciation and amortization.
For the year ended December 31, 2007, $11.0 million was used in investing activities. Of this amount, $9.8 million was used by
RXi for the purchase of short-term investments. The other $1.3 million was used for the purchase of equipment and furnishings,
primarily associated with equipping the new San Diego laboratory. For the year ended December 31, 2006, only a small amount of
cash was used in investing activities. For the year ended December 31, 2005, the only significant investing activity was the
redemption of an approximately $1.0 million certificate of deposit. Other investing activities consisted primarily of the purchase of
small amounts of computers and laboratory equipment
Cash provided by financing activities for the year ended December 31, 2007 was $53.5 million compared to $12.8 million and
$19.8 million in the years ended December 31, 2006 and 2005, respectively. During 2007, we raised $34.2 million in a private
placement of our common stock and an additional $18.8 million from the exercise of previously outstanding stock options and
warrants. During 2006, we raised $12.4 million through a private placement of our common stock and an additional $0.4 million from
the exercise of stock options and warrants. During the year ended December 31, 2005, we raised $19.6 million through a private
placement of common stock.
We believe that we have adequate working capital to allow us to operate at our currently planned levels into the second half of
2009. We may require additional capital in order to fund the completion of our clinical programs for arimoclomol for the treatment of
ALS and for stroke recovery and iroxanadine for diabetic ulcers, and the other ongoing research and development related to our
molecular chaperone amplification drug candidates. We may incur substantial additional expense and our clinical programs may be
delayed if the FDA requires us to generate additional pre-clinical or clinical data in connection with the clinical trials, or the FDA
requires us to revise significantly our planned protocols for our planned clinical trials.
We intend also to pursue other sources of capital, although we do not currently have commitments from any third parties to provide
us with capital. Our ability to obtain future financings through joint ventures, product licensing arrangements, equity financings, gifts,
and grants or otherwise is subject to market conditions and out ability to identify parties that are willing and able to enter into such
arrangements on terms that are satisfactory to us. Depending upon the outcome of our fundraising efforts, the accompanying financial
information may not necessarily be indicative of future operating results or future financial condition.
We expect to incur significant losses for the foreseeable future and there can be no assurance that we will become profitable. Even
if we become profitable, we may not be able to sustain that profitability.
33
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements that have a material current effect or that are reasonably likely to have a material future
effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital
expenditures, or capital resources.
Contractual Obligations
We acquire assets still in development and enter into research and development arrangements with third parties that often require
milestone and royalty payments to the third party contingent upon the occurrence of certain future events linked to the success of the
asset in development. Milestone payments may be required, contingent upon the successful achievement of an important point in the
development life-cycle of the pharmaceutical product (e.g., approval of the product for marketing by a regulatory agency). If required
by the arrangement, we may have to make royalty payments based upon a percentage of the sales of the pharmaceutical product in the
event that regulatory approval for marketing is obtained. Because of the contingent nature of these payments, they are not included in
the table of contractual obligations.
These arrangements may be material individually, and in the unlikely event that milestones for multiple products covered by these
arrangements were reached in the same period, the aggregate charge to expense could be material to the results of operations in any
one period. In addition, these arrangements often give us the discretion to unilaterally terminate development of the product, which
would allow us to avoid making the contingent payments; however, we are unlikely to cease development if the compound
successfully achieves clinical testing objectives. We also note that, from a business perspective, we view these payments as positive
because they signify that the product is successfully moving through development and is now generating or is more likely to generate
cash flows from sales of products.
As a result of RXi’s separation from CytRx in March 2008 (see discussion in the “Our Separation from RXi Pharmaceuticals
Corporation” section on page 8), each of CytRx and RXi will be responsible for their respective future contractual obligations,
therefore, they are shown separately below.
CytRx’s current contractual obligations that will require future cash payments are as follows:
Operating
Leases
Non-Cancelable
Employment
Agreements
Subtotal
(1)
(2)
Research and
Development
(In thousands)
(3)
Cancelable
License
Agreements
Subtotal
2008
2009
2010
2011
2012 and thereafter
Total
$
$
446
236
145
11
—
838
$
$
900
650
—
—
—
1,550
$
$
1,346
886
145
11
—
2,388
$
$
4,035
3,279
3,045
2,188
681
13,228
$
$
RXi’s current contractual obligations that will require future cash payments are as follows:
(4)
—
—
—
—
—
—
$
4,035
3,279
3,045
2,188
681
$ 13,228
Total
$ 5,381
4,165
3,190
2,199
681
$ 15,616
Operating
Leases
Non-Cancelable
Employment
Agreements
Subtotal
(1)
(2)
Research and
Development
(In thousands)
(3)
Cancelable
License
Agreements
Subtotal
2008
2009
2010
2011
2012
2013 and thereafter
Total
$
$
180
105
—
—
—
—
285
$
$
942
448
290
105
—
—
1,785
$
$
1,122
553
290
105
—
—
2,070
$
$
—
—
—
—
—
—
—
$
$
(4)
716
666
616
816
1,126
10,325
14,265
$
716
666
616
816
1,126
10,325
$ 14,265
Total
$ 1,838
1,219
906
921
1,126
10,325
$ 16,335
(1)
Operating leases are primarily facility lease related
obligations, as well as equipment and software lease
obligations with third party vendors.
34
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
(2)
(3)
(4)
Employment agreement obligations include
management contracts, as well as scientific advisory
board member compensation agreements. Certain
agreements, which have been revised from time to time,
provide for minimum salary levels, adjusted annually at
the discretion of our Compensation Committee, as well
as for minimum bonuses.
Research and development obligations relate primarily
to clinical trials. Most of these purchase obligations are
cancelable.
License agreements generally relate to RXi’s
obligations with UMMS associated with RNAi and, for
future periods, represent minimum annual royalty
payment obligations. Not included in the table are
milestone payment amounts that may be required under
RXi’s license agreements, due to their contingent
nature. RXi has determined that a hypothetical product
candidate attaining all possible product milestones
would have aggregate potential milestone payments of
$36 million. This hypothetical product analysis was
undertaken since RXi has not yet named a lead product
candidate. RXi determined what would be a like product
candidate based on its current research and ran an
analysis of the milestone payments due under its current
licenses for this hypothetical product. As a part of this
analysis, due to the fact that certain of its licenses are
for technologies that are mutually exclusive, if any two
licenses are mutually exclusive and only one would be
applicable to any single product, RXi selected the
milestone payments that would result in higher fees to
include in its analysis.
Net Operating Loss Carryforwards
At December 31, 2007, we had United States federal and state net operating loss carryforwards of $109 million and $52 million,
respectively, available to offset against future taxable income, which expire in 2010 through 2027. As a result of a change in-control
that occurred in our shareholder base in July 2002, approximately $45 million in federal net operating loss carryforwards became
limited in their availability to $0.7 million annually. Management currently believes that the remaining $64 million in federal net
operating loss carryforwards, and the $52 million in state net operating loss carryforwards, are unrestricted. However, we are
reviewing our recent equity transactions to determine if they may have resulted in any further restrictions on our net operating loss
carryforwards. Additionally, due to the change-in-control, approximately $6.3 million of research and development tax credits will not
be available for utilization and were written off. As of December 31, 2007, we also had research and development and orphan drug
credits for federal and state purposes of approximately $3 million and $2 million, respectively, available for offset against future
income taxes, which expire in 2023 through 2027. Based on an assessment of all available evidence including, but not limited to, our
limited operating history in our core business and lack of profitability, uncertainties of the commercial viability of our technology, the
impact of government regulation and healthcare reform initiatives, and other risks normally associated with biotechnology companies,
we have concluded that it is more likely than not that these net operating loss carryforwards and credits will not be realized and, as a
result, a 100% deferred income tax valuation allowance has been recorded against these assets.
Results of Operations
We recorded net losses of $21.9 million, $16.8 million and $15.1 million during the years ended December 31, 2007, 2006 and
2005, respectively.
During fiscal 2007, we recognized $7.2 million in service revenues relating to our $24.3 million sale to the ALSCRT of a
one-percent royalty interest in the worldwide sales of arimoclomol in August 2006. This compares to $1.9 million in services revenues
in the year ended December 31, 2006, of which $1.8 million related to the sale of royalty interest sold to ALSCRT. During 2007 and
2006, we earned an immaterial amount of license fees and grant revenue. In the year ended December 31, 2005, we earned an
immaterial amount of service and license fee revenue. All future licensing fees under our current licensing agreements are dependent
upon successful development milestones being achieved by the licensor. During fiscal 2008, we are not anticipating the receipt of any
significant service or licensing fees, although we estimate that we will recognize an additional $8.4 million in service revenues from
that arimoclomol royalty transaction. We will continue to recognize the balance of the deferred revenue recorded from the royalty
transaction with the ALS Charitable Remainder Trust based on actual research and development costs incurred over the development
period of our arimoclomol research.
35
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Research and Development
Research and development expense
Non-cash research and development expense
Employee stock option expense
2007
$ 14,454
3,778
592
$ 18,824
Years Ended December 31,
2006
(In thousands)
$ 8,858
674
249
$ 9,781
2005
$ 8,867
220
—
$ 9,087
Research expenses are expenses incurred by us in the discovery of new information that will assist us in the creation and the
development of new drugs or treatments. Development expenses are expenses incurred by us in our efforts to commercialize the
findings generated through our research efforts.
Research and development expenses incurred during 2007, 2006 and 2005 relate primarily to (i) our Phase II clinical program for
arimoclomol in ALS, (ii) our ongoing research and development related to other molecular chaperone amplification drug candidates,
(iii) RXi’s acquisition of technologies covered by the UMMS license agreements, (iv) our prior collaboration and invention disclosure
agreement pursuant to which UMMS had agreed to disclose certain inventions to us and provide us with the right to acquire an option
to negotiate exclusive licenses for those disclosed technologies, and (v) the small molecule drug discovery and development
operations at our former Massachusetts and new California laboratory. All research and development costs related to the activities of
RXi and our former laboratory were expensed.
As compensation to members of our scientific advisory board (“SAB”) and consultants, and in connection with the acquisition of
technology, we and RXi sometimes issue shares of common stock, stock options and warrants to purchase shares of common stock.
For financial statement purposes, we value these shares of common stock, stock options, and warrants at the fair value of the common
stock, stock options or warrants granted, or the services received, whichever is more reliably measurable. We recorded charges of
$3.8 million, $0.7 million, and $0.2 million in this regard during 2007, 2006, and 2005, respectively. Included in the research and
development charges for 2007 were $2.3 million of expense related to RXi’s issuance of 462,112 shares of common stock to UMMS
for certain license agreement rights and a new invention disclosure agreement and $1.0 million for non-qualifying stock options to
SAB members of RXi. In 2007, we recorded $0.6 million of employee stock option expense as compared to $0.2 million in 2006 and
none in 2005.
In 2008, we expect our research and development expenses to increase primarily as a result of our clinical program with
arimoclomol for ALS and related studies and our planned clinical trials of arimoclomol for stroke recovery and iroxanadine for
diabetic ulcers. Additionally, RXi, our majority-owned subsidiary, expects to increase their expenditures during 2008 related to their
development of RNAi therapeutics.
General and administrative expenses
General and administrative expenses
Stock, stock option and warrant expenses to non-employees and consultants
Employee stock option expense
2007
$ 12,666
2
2,154
$ 14,822
Years Ended December 31,
2006
(In thousands)
$ 8,622
60
975
$ 9,657
2005
$ 6,057
367
—
$ 6,424
General and administrative expenses include all administrative salaries and general corporate expenses, including legal expenses
associated with the prosecution of our intellectual property. Our general and administrative expenses, excluding common stock, stock
options and warrants issued, and excluding depreciation expense, were $12.7 million in 2007, $8.6 million in 2006 and $6.1 million in
2005. General and administrative expenses increased by $4.1 million in 2007 as compared to 2006 primarily due to increased audit,
legal and consulting fees and higher employment costs. Audit fees associated with our annual audit, compliance with the internal
control provisions of the Sarbanes-Oxley Act and RXi’s registration statement relating to our partial spinoff of RXi increased by
approximately $1.1 million. Legal fees increased by approximately $0.9 million primarily related to RXi’s Registration Statement,
increased patent work, license negotiation fees and other legal matters, including possible financing transactions. Recruiting and
consulting fees increased by approximately $0.7 million related to recruiting officers, financial and scientific personnel and
consultants assisting with the preparation of RXi’s Registration Statement on Form S-1. Employment costs increased by
approximately $1.4 million related to wages and bonuses for additional personnel for RXi and annual increases for other employees.
36
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
General and administrative expenses increased by $2.6 million in 2006 as compared to 2005 as a result of initial Sarbanes-Oxley Act
compliance efforts, an increase in administrative salaries and legal expenses. The legal expense increase of $0.6 million was
associated with maintenance of our patent portfolio and the formation of RXi. In our efforts to comply with the Sarbanes-Oxley Act
for the year ended December 31, 2006, we incurred approximately $0.8 million in consulting, audit and accounting system conversion
expense. We were required to comply with the attestation requirements under Section 404 of the Sarbanes-Oxley Act for the first time
for the year ended December 31, 2006; therefore, there are no corresponding expenses in 2005. In 2006, our general and
administrative salaries increased by $0.6 million over the 2005 expense level as a result of a higher bonuses, additional regulatory and
accounting personnel and annual salary increases.
From time to time, we issue shares of our common stock or warrants or options to purchase shares of our common stock to
consultants and other service providers in exchange for services. For financial statement purposes, we value these shares of common
stock, stock options, and warrants at the fair value of the common stock, stock options or warrants granted, or the services received,
whichever we can measure more reliably. We recorded no such charges during 2007, $0.1 million during 2006 and $0.4 million during
2005 related primarily to common stock, stock options and warrants issued for licensing fees and in connection with the engagement
and retention of financial, business development and scientific advisors.
Since our adoption of SFAS 123(R) during 2006, we recorded $2.7 million in fiscal 2007 and $1.0 million in fiscal 2006 of
employee stock option expense. No corresponding expense existed in 2005. The increase in 2007 over 2006 primarily related to stock
options granted by RXi to recruit and retain directors, officers and additional employees.
Depreciation and amortization
Depreciation and amortization expenses were $272,000, $228,000 and $217,000 in 2007, 2006 and 2005, respectively. The
depreciation expense reflects the depreciation of our fixed assets and the amortization expenses related to our molecular library, which
was placed in service in March 2005.
Other Income
In June 2007, we recognized $1.5 million of income arising from a fee received pursuant to a change-in-control provision included
in the purchase agreement for our 1998 sale of our animal pharmaceutical unit. Management concluded that the fee did not represent
revenue generated from our normal course of our business, and accordingly we recorded this fee as other income.
Interest income
Interest income was $2,664,000 in 2007, as compared to $997,000 in 2006 and $206,000 in 2005. The variances between years are
attributable primarily to the amount of funds available for investment each year and, to a lesser extent, changes in prevailing market
rates.
Minority interest in losses of subsidiary
We recorded $81,000 in 2005 related to the 5% minority interest in losses of our former CytRx Laboratories subsidiary. There was
no minority interest in losses recorded in 2006, since on June 30, 2005 we repurchased the 5% minority interest from Dr. Michael
Czech. On September 30, 2005, we merged CytRx Laboratories into CytRx. We recorded $0.4 million in 2007 related to the 15%
minority interest in losses of RXi.
Until recently, we owned approximately 85% of the outstanding shares of common stock of RXi and our consolidated financial
statements, including our consolidated financial statements as of and for the year ended December 31, 2007 included in this Annual
Report, reflected 100% of the assets and liabilities of RXi, and the ownership of the interests of the minority shareholders was
recorded as “minority interests.” On February 14, 2008, our board of directors declared a dividend, payable to our stockholders as of
March 6, 2008, the record date, of one share of RXi common stock for each approximately 20.05 shares of our common stock held by
such stockholders. The dividend was paid on March 11, 2008. The RXi shares distributed by us to our stockholders constituted
approximately 36% of the currently outstanding RXi shares, so we currently own approximately 49% of the outstanding shares of RXi
common stock. For periods beginning with the first quarter of 2008 and for so long as we own more than 20% but less than 50% of the
outstanding shares of RXi, we will account for our investment in RXi using the equity method. Under the equity method, we will
record only our pro-rata share of the assets, liabilities and results of operations of RXi.
Recent Accounting Pronouncements
In July 2006, the Financial Accounting Standards Board (“FASB”) issued Interpretation No. 48, Accounting for Uncertainty in
Income Taxes, an interpretation of FASB Statement No. 109 (“FIN No. 48”), to create a single model to address accounting for
uncertainty in tax positions. FIN No. 48 clarifies the accounting for income taxes by prescribing a minimum recognition threshold in
which a tax position be reached before financial statement recognition. FIN No. 48 also provides guidance on derecognition,
37
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
measurement, classification, interest and penalties, accounting in interim periods, disclosure and transition. FIN No. 48 is effective for
fiscal years beginning after December 15, 2006. We adopted FIN No. 48 as of January 1, 2007, as required. The adoption of FIN
No. 48 did not have an impact on our financial position and results of operations.
In September 2006, the FASB issued Statement of Financial Accounting Standards (“SFAS”) No. 157, Fair Value Measurements
(“SFAS No. 157”). SFAS No. 157 defines fair value, establishes a framework for measuring fair value in accordance with generally
accepted accounting principles, and expands disclosures about fair value measurements. SFAS No. 157 does not expand the use of fair
value in any new circumstances. In February 2008, the FASB issued Staff Position No. FAS 157-1, which amended SFAS No. 157 to
exclude SFAS No. 13, Accounting for Leases, and other accounting pronouncements that address fair value measurements for
purposes of lease classification or measurement under Statement 13. However, this scope exception does not apply to assets acquired
and liabilities assumed in a business combination. Also in February 2008, the FASB issued Staff Position No. FAS 157-2, which
delayed the effective date of SFAS No. 157 for non-financial assets and liabilities, except those items recognized at fair value on an
annual or more frequently recurring basis to fiscal years beginning after November 15, 2008 and interim periods within those fiscal
years. We do not expect SFAS No. 157 will have a significant impact on our consolidated financial statements.
In February 2007, the FASB issued SFAS No. 159, Fair Value Option for Financial Assets and Financial Liabilities (“SFAS
No. 159”). SFAS No. 159 permits entities to choose to measure many financial assets and financial liabilities at fair value. Unrealized
gains and losses on items for which the fair value option has been elected are reported in earnings. SFAS No. 159 is effective for fiscal
years beginning after November 15, 2007. We do not expect SFAS No. 159 will have a significant impact on our consolidated
financial statements.
In June 2007, the FASB ratified the consensus on Emerging Issues Task Force (“EITF”) Issue No. 06-11, Accounting for Income
Tax Benefits of Dividends on Share-Based Payment Awards (“EITF 06-11”). EITF 06-11 requires companies to recognize the income
tax benefit realized from dividends or dividend equivalents that are charged to retained earnings and paid to employees for non-vested
equity-classified employee share-based payment awards as an increase to additional paid-in capital. EITF 06-11 is effective for fiscal
years beginning after September 15, 2007. The adoption is not expected to have a significant impact on our consolidated financial
statements.
In June 2007, the FASB ratified the consensus reached on EITF Issue No. 07-3, Accounting for Nonrefundable Advance Payments
for Goods or Services Received for Use in Future Research and Development Activities (“EITF 07-3”), which requires that
nonrefundable advance payments for goods or services that will be used or rendered for future research and development activities be
deferred and amortized over the period that the goods are delivered or the related services are performed, subject to an assessment of
recoverability. EITF 07-3 will be effective for fiscal years beginning after December 15, 2007. We do not expect that the adoption of
EITF 07-3 will have an impact on our consolidated financial statements.
In December 2007, the FASB issued SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statements (“SFAS
No. 160”) and a revision to SFAS No. 141, Business Combinations (“SFAS No. 141R”). SFAS No. 160 modifies the accounting for
noncontrolling interest in a subsidiary and the deconsolidation of a subsidiary. SFAS No. 141R establishes the measurements in a
business combination of the identifiable assets acquired, the liabilities assumed and any noncontrolling interest in the acquiree. Both
of these related statements are effective for fiscal years beginning after December 15, 2008. We have not yet determined the impact
that the recent adoption of these two statements may have on our consolidated financial statements.
In December 2007, the SEC issued Staff Accounting Bulletin 110 (“SAB 110”), which expresses the views of the Staff regarding
use of a “simplified” method, as discussed in SAB 107, in developing an estimate of expected term of “plain vanilla” share options in
accordance with Statement of Financial Accounting Standards No. 123. SAB 110 will allow, under certain circumstances, the use of
the simplified method beyond December 31, 2007 when a Company is unable to rely on the historical exercise data. The Company
does not anticipate the adoption of SAB 110 having a material impact on our financial statements.
Off-Balance Sheet Arrangements
We have not entered into off-balance sheet financing arrangements, other than operating leases.
Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Our exposure to market risk is limited primarily to interest income sensitivity, which is affected by changes in the general level of
United States interest rates, particularly because a significant portion of our investments are in short-term debt securities issued by the
38
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
U.S. government and institutional money market funds. The primary objective of our investment activities is to preserve principal.
Due to the nature of our short-term investments, we believe that we are not subject to any material market risk exposure. We do not
have any derivative financial instruments or foreign currency instruments. If interest rates had varied by 10% in the year ended
December 31, 2007, it would not have had a material effect on our results of operations or cash flows for that period.
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Our consolidated financial statements and supplemental schedule and notes thereto as of December 31, 2007 and 2006, and for
each of the three years in the period then ended December 31, 2007, 2006 and 2005, together with the independent registered public
accounting firms’ reports thereon, are set forth on pages F-1 to F-25 of this Annual Report.
Item 9A. CONTROLS AND PROCEDURES
Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that the information disclosed in the reports we file
with the Securities and Exchange Commission under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and
communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely
decisions regarding required disclosure.
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, performed an evaluation of the
effectiveness of the design and operation of our disclosure controls and procedures (as defined in Securities Exchange Act
Rule 13a-15(e)) as of the end of the period covered by this Annual Report. Based on that evaluation and the existence of certain
material weaknesses discussed below under discussed below under “Management’s Report on Internal Control Over Financial
Reporting,” our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures were
not effective as of December 31, 2007 to provide reasonable assurance that information required to be disclosed by us in reports that
we file or submit under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods
specified in the Securities and Exchange Commission’s rules and forms.
There was no change in our internal control over financial reporting that occurred during the quarter ended December 31, 2007 that
materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal
control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of the consolidated financial statements and related disclosures in accordance with generally accepted accounting
principles. Our internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of
records that, in reasonable detail, accurately and fairly reflect the transactions of our company; (2) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of the consolidated financial statements and related disclosures in
accordance with generally accepted accounting principles and that our receipts and expenditures are being made only in accordance
with authorizations of our management and directors; and (3) provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use, or disposition of our assets that could have a material effect on our consolidated financial statements
and related disclosures.
Because of inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections
of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in
conditions, or that the degree of compliance with policies and procedures may deteriorate.
We assessed the effectiveness of our internal control over financial reporting as of December 31, 2007. In making this assessment,
management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in
Internal Control-Integrated Framework.
Based upon management’s assessment using the criteria contained in COSO, and for the reasons discussed below, our management
has concluded that, as of December 31, 2007, our internal control over financial reporting was not effective.
39
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Pursuant to standards established by the Public Company Accounting Oversight Board, a “material weakness” is a “significant
deficiency or combination of significant deficiencies that results in more than a remote likelihood that a material misstatement of the
annual or interim financial statements will not be presented or detected.” Management identified the following material weaknesses in
our internal control over financial reporting as of December 31, 2007:
There were instances of our accounting personnel not following established policies and procedures, which resulted in ineffective
controls over financial reporting. Additionally, we failed to update our legal database during the fourth quarter of 2007 for a limited
number of drug development contracts and stock option agreements due to poor communications among our scientific, legal and
accounting departments. These failures in controls, if not properly addressed, could result in a material misstatement that would not be
detected or prevented by our internal controls.
Based on the evaluation of the effectiveness of our disclosure controls and procedures, and in light of the deficiencies described
above, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were not
effective as of December 31, 2007.
In assessing the cause of the material weaknesses described above in order to identify and complete any necessary remedial
actions, management concluded that turnover of several accounting personnel at both CytRx and RXi during 2007, which coincided
with a significant increase in the workload of the accounting department relating primarily to our compliance with applicable SEC
financial statement and other reporting requirements in connection with our partial spin-off of RXi, was a contributing factor to the
material weaknesses.
We continuously seek to improve and strengthen our control processes to ensure that all of our controls and procedures are
adequate and effective. Any failure to implement and maintain improvements in the controls over our financial reporting could cause
us to fail to meet our reporting obligations under the Securities and Exchange Commission’s rules and regulations. Any failure to
improve our internal controls to address the weaknesses we have identified could also cause investors to lose confidence in our
reported financial information, which could have a negative impact on the trading price of our common stock.
40
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Item 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The following table sets forth information concerning our directors and executive officers:
PART III
Name
Max Link, Ph.D.
Steven A. Kriegsman
Marvin R. Selter
Louis Ignarro, Ph.D.
Joseph Rubinfeld, Ph.D.
Richard L. Wennekamp
Mitchell K. Fogelman
Jack R. Barber, Ph.D.
Shi Chung Ng, Ph.D.
Benjamin S. Levin
John Y. Caloz
Age
67
66
80
66
75
65
56
52
53
32
56
Position
Director, Chairman of the Board(2)(3)
Director, Chief Executive Officer, President
Director, Vice Chairman of the Board(2)(3)(4)
Director
Director(2)(4)
Director(2)(3)(4)
Class of
Director(1)
III
II
II
I
I
II
— Chief Financial Officer, Treasurer
— Chief Scientific Officer
Senior Vice President — Research and Development
—
— General Counsel, Vice President — Legal Affairs and Corporate
Secretary
— Chief Accounting Officer
(1)
(2)
(3)
(4)
Our Class II directors serve until the 2008 annual
meeting of stockholders, our Class III director serves
until the 2009 annual meeting of stockholders and our
Class I directors serve until the 2010 annual meeting of
stockholders.
Members of our Audit Committee. Mr. Selter is the
Chairman of the Committee.
Members of our Nominating and Corporate Governance
Committee. Mr. Wennekamp is Chairman of the
Committee.
Members of our Compensation Committee.
Dr. Rubinfeld is Chairman of the committee.
Max Link, Ph.D has been a director since 1996. Dr. Link has been retired from business since 2003. From March 2002 until its
acquisition by Zimmer Holdings, Dr. Link served as Chairman and CEO of Centerpulse, Ltd. From May 1993 to June 1994, Dr. Link
served as the Chief Executive Officer of Corange Ltd. (the holding company for Boehringer Mannheim Therapeutics, Boehringer
Mannheim Diagnostics and DePuy International). From 1992 to 1993, Dr. Link was Chairman of Sandoz Pharma, Ltd. From 1987 to
1992, Dr. Link was the Chief Executive Officer of Sandoz Pharma and a member of the Executive Board of Sandoz, Ltd., Basel. Prior
to 1987, Dr. Link served in various capacities with the United States operations of Sandoz, including President and Chief Executive
Officer. Dr. Link also serves as a director of Alexion Pharmaceuticals, Inc., Celsion Corporation and Discovery Laboratories, Inc.,
each of which is a public company.
Steven A. Kriegsman has been a director and our President and Chief Executive Officer since July 2002. He also serves as a
director of RXi. He previously served as Director and Chairman of Global Genomics from June 2000 until our merger with Global
Genomics in July 2002. Mr. Kriegsman is the Chairman of the Board and founder of Kriegsman Capital Group LLC, a financial
advisory firm specializing in the development of alternative sources of equity capital for emerging growth companies in the healthcare
industry. He has advised such companies as SuperGen Inc., Closure Medical Corporation, Novoste Corporation, Miravant Medical
Technologies, and Maxim Pharmaceuticals. Mr. Kriegsman has a B.S. degree with honors from New York University in accounting
and completed the Executive Program in Mergers and Acquisitions at New York University, The Management Institute.
Mr. Kriegsman was formerly a Certified Public Accountant with KPMG in New York City. From June 2003 until February 2008, he
served as a Director, and he is the former Chairman of the Audit Committee of, Bradley Pharmaceuticals, Inc. In February 2006,
Mr. Kriegsman received the Corporate Philanthropist of the Year Award from the Greater Los Angeles Chapter of the ALS
Association and in October 2006, he received the Lou Gehrig Memorial Corporate Award from the Muscular Dystrophy Association.
Mr. Kriegsman has been active in various charitable organizations including the Biotechnology Industry Organization, the ALS
Association, the Los Angeles Venture Association, the Southern California Biomedical Council, and the Palisades-Malibu YMCA.
Marvin R. Selter has been a director since October 2003. He has been President and Chief Executive Officer of CMS, Inc. since he
founded that firm in 1968. CMS, Inc. is a national management consulting firm. In 1972, Mr. Selter originated the concept of
employee leasing. He serves as a member of the Business Tax Advisory Committee—City of Los Angeles, Small Business
Board—State of California and the Small Business Advisory Commission—State of California. Mr. Selter also serves on the Valley
Economic Development Center as past Chairman and Audit Committee Chairman, the Board of Valley Industry and Commerce
Association as
41
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
past Chairman, the Advisory Board of the San Fernando Economic Alliance and the California State University—Northridge as
Chairman of the Economic Research Center. He has served, and continues to serve, as a member of boards of directors of various
hospitals, universities, private medical companies and other organizations. Mr. Selter attended Rutgers—The State University,
majoring in Accounting and Business Administration. He was an LPA having served as Controller, Financial Vice President and
Treasurer at distribution, manufacturing and service firms. He has lectured extensively on finance, corporate structure and budgeting
for the American Management Association and other professional teaching associations.
Louis Ignarro, Ph.D. has been a director since July 2002. He previously served as a director of Global Genomics from
November 20, 2000. Dr. Ignarro serves as the Jerome J. Belzer, M.D. Distinguished Professor of Pharmacology in the Department of
Molecular and Medical Pharmacology at the UCLA School of Medicine. Dr. Ignarro has been at the UCLA School of Medicine since
1985 as a professor, acting chairman and assistant dean. Dr. Ignarro received the Nobel Prize for Medicine in 1998. Dr. Ignarro
received a B.S. degree in pharmacy from Columbia University and his Ph.D. degree in pharmacology from the University of
Minnesota.
Joseph Rubinfeld, Ph.D. has been a director since July 2002. He co-founded SuperGen, Inc. in 1991 and has served as its Chief
Executive Officer and President and as a director since its inception until December 31, 2003. He resigned as Chairman Emeritus of
SuperGen, Inc. on February 8, 2005. Dr. Rubinfeld was also Chief Scientific Officer of SuperGen from 1991 until September 1997.
Dr. Rubinfeld is also a founder of, and currently serves as the Chairman and Chief Executive Officer of, JJ Pharma. Dr. Rubinfeld was
one of the four initial founders of Amgen, Inc. in 1980 and served as a Vice President and its Chief of Operations until 1983. From
1987 until 1990, Dr. Rubinfeld was a Senior Director at Cetus Corporation and from 1968 to 1980, Dr. Rubinfeld was employed at
Bristol-Myers Company, International Division in a variety of positions. Dr. Rubinfeld received a B.S. degree in chemistry from
C.C.N.Y. and M.A. and Ph.D. degrees in chemistry from Columbia University.
Richard L. Wennekamp has been a director since October 2003. He has been the Senior Vice President-Credit Administration of
Community Bank since October 2002. From September 1998 to July 2002, Mr. Wennekamp was an executive officer of Bank of
America Corporation, holding various positions, including Managing Director-Credit Product Executive for the last four years of his
22-year term with the bank. From 1977 through 1980, Mr. Wennekamp was a Special Assistant to former President of the United
States, Gerald R. Ford, and the Executive Director of the Ford Transition Office. Prior to that time, he served as Staff Assistant to the
President of the United States for one year, and as the Special Assistant to the Assistant Secretary of Commerce of the United States.
Mr. Wennekamp received his M.B.A. in finance from the University of Southern California and his B.S. degree from California State
University, Long Beach.
Mitchell K. Fogelman joined CytRx as our Chief Financial Officer and Treasurer in September 2007. Previously, he served as
Senior Vice President-Finance of International Aluminum Corporation, a New York Stock Exchange listed manufacturer of
commercial and residential building products, where he had worked for twenty-five years. Mr. Fogelman is a CPA who worked at
PricewaterhouseCoopers LLP as a Senior Manager. He earned his M.B.A. in finance and quantitative analysis from the Anderson
School of Business at the University of California, Los Angeles, and his B.A. degree in mathematics from the University of
California, Los Angeles.
Jack R. Barber, Ph.D. has been our Senior Vice President — Drug Development since July 2004, and was named Chief Scientific
Officer in February 2007. He previously served as Chief Technical Officer and Vice President of Research and Development at
Immusol, a biopharmaceutical company based in San Diego, California, since 1994. Prior to that, Dr. Barber spent seven years in
various management positions at Viagene, most recently serving as Associate Director of Oncology. Dr. Barber received both his B.S.
and Ph.D. degrees in biochemistry from the University of California, Los Angeles. He also carried out his post-doctoral fellowship at
the Salk Institute for Biological Studies in La Jolla, California.
Shi Chung Ng, Ph.D. joined CytRx as our Senior Vice President — Research and Development in April 2007. Previously, he
served as Vice President of Molecular Oncology at Ligand Pharmaceuticals, directing the cancer discovery efforts as well as genomics
biomarker studies for Targretin. Prior to that, he served as Vice President of Drug Discovery Biology and Preclinical Development of
ArQule, Inc., leading novel cell cycle checkpoint activation drug discovery and development efforts for ARQ-197. From 1993-2004,
Dr. Ng co-led efforts in the discovery and development of multiple oncology drug candidates at Abbott, including a Bcl-2 inhibitor,
farnesyl transferase inhibitors, and novel anti-mitotics as a founding member of Abbott oncology, a Senior Group Leader and a
Volwiler Associate Fellow. Prior to his tenure at Abbott, Dr. Ng worked at Pfizer, Bristol-Myers Squibb and Harvard Medical School.
He was adjunct Assistant Professor at the Chicago Medical School, and adjunct Faculty Member at Northwestern University. He had
also served as a visiting Professor at Rutgers University, a visiting Research Staff Member at Princeton University, and an Instructor
in Medicine at Harvard Medical School. Dr. Ng received a Ph.D. in Biochemistry from Purdue University, and a Postdoctoral
42
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Fellowship from Howard Hughes Medical Institute and Harvard Medical School. Dr. Ng has published over 200 papers, abstracts and
patent applications and he was the recipient of multiple scholarships and awards.
Benjamin S. Levin has been our General Counsel, Vice President — Legal Affairs and Corporate Secretary since July 2004. From
November 1999 to June 2004, Mr. Levin was an associate in the transactions department of the Los Angeles office of O’Melveny &
Myers LLP. Mr. Levin received his S.B. in Economics from the Massachusetts Institute of Technology, and a J.D. degree from
Stanford Law School.
John Y. Caloz joined CytRx as our Chief Accounting Officer in October 2007. Before joining CytRx, he most recently served for
one year as Chief Financial Officer of Occulogix, Inc., a NASDAQ-listed medical-therapy company. Prior to that, Mr. Caloz served
for three years as Chief Financial Officer of IRIS International Inc., a California medical device manufacturer. Before that, he served
as Chief Financial Officer of Synarc, Inc., a medical imaging company, and from 1993 to 1999 he was Senior Vice President, Finance
and Chief Financial Officer of Phoenix International Life Sciences Inc. of Montreal, Canada, which was acquired by MDS Inc. in
1999. From 1983 to 1993, Mr. Caloz was a partner at Rooney, Greig, Whitrod, Filion & Associates of Saint Laurent, Quebec, Canada,
a firm of Chartered Accountants specializing in research and development and technology companies. Mr. Caloz is a Chartered
Accountant and holds a degree in Accounting from York University, Toronto, Canada.
Audit Committee
Our board of directors has a standing Audit Committee currently composed of Messrs. Selter, Link, Rubinfeld and Wennekamp.
Our board of directors has determined that Mr. Selter, one of the independent directors serving on our Audit Committee, also is an
“audit committee financial expert” as defined by the SEC’s rules. Our board of directors has determined that Messrs. Link, Rubinfeld,
Selter and Wennekamp are “independent” under the current independence standards of both The NASDAQ Capital Market and the
SEC.
Section 16(a) Beneficial Ownership Reporting Compliance
Our executive officers and directors and any person who owns more than 10% of our outstanding shares of common stock are
required under Section 16(a) of the Securities Exchange Act to file with the SEC initial reports of ownership and reports of changes in
ownership of our common stock and to furnish us with copies of those reports. Based solely on our review of copies of reports we
have received and written representations from certain reporting persons, we believe that our directors and executive officers and
greater than 10% shareholders for 2007 complied with all applicable Section 16(a) filing requirements, except that the initial Form 3
for John Caloz, our Chief Accounting Officer, was filed late due to an administrative oversight.
Code of Ethics
We have adopted a Code of Ethics applicable to all employees, including our principal executive officer, principal financial officer,
and principal accounting officer or controller, a copy of which is available on our website at www.cytrx.com. We will furnish, without
charge, a copy of our Code of Ethics upon request. Such requests should be directed to Attention: Corporate Secretary, 11726 San
Vicente Boulevard, Suite 650, Los Angeles, California, or by telephone at 310-826-5648.
Item 11. EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
Overview of Executive Compensation Program
The Compensation Committee of our board of directors has responsibility for establishing, implementing and monitoring our
executive compensation program philosophy and practices. The Compensation Committee seeks to ensure that the total compensation
paid to our named executive officers is fair, reasonable and competitive. Generally, the types of compensation and benefits provided to
the named executive officers are similar to those provided to our other officers.
Throughout this Annual Report, the individuals included in the Summary Compensation Table on page 48 are referred to as the
“named executive officers.”
43
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Compensation Philosophy and Objectives
The components of our executive compensation consist of salary, annual cash bonuses awarded based on the Compensation
Committee’s subjective assessment of each individual executive’s job performance during the past year, stock option grants to provide
executives with longer-term incentives, and occasional special compensation awards (either cash or stock options) to reward
extraordinary efforts or results.
The Compensation Committee believes that an effective executive compensation program should provide base annual
compensation that is reasonable in relation to individual executive’s job responsibilities and reward the achievement of both annual
and long-term strategic goals of our company. The Compensation Committee uses annual and other periodic cash bonuses to reward
an officer’s achievement of specific goals and employee stock options as a retention tool and as a means to align the executive’s
long-term interests with those of our stockholders, with the ultimate objective of improving stockholder value. The Compensation
Committee evaluates both performance and compensation to maintain our company’s ability to attract and retain excellent employees
in key positions and to assure that compensation provided to key employees remains competitive relative to the compensation paid to
similarly situated executives of comparable companies. To that end, the Compensation Committee believes executive compensation
packages provided by us to our named executive officers should include both cash compensation and stock options.
Because of the size of our company, the small number of executive officers in our company, and our company’s financial priorities,
the Compensation Committee has decided not to implement or offer any pension benefits, deferred compensation plans, or other
similar plans for our named executive officers.
As a biopharmaceutical company engaged in developing potential products that, to date, have not generated significant revenues
and are not expected to generate significant revenues or profits for several years, the Compensation Committee also takes the
company’s financial and working capital condition into account in its compensation decisions. Accordingly, the Compensation
Committee historically has weighted bonuses more heavily with stock options rather than cash. The Compensation Committee may
periodically reassess the proper weighting of equity and cash compensation in light of the company’s working capital situation from
time to time.
Role of Executive Officers in Compensation Decisions
The Compensation Committee makes all compensation decisions for the named executive officers and approves recommendations
regarding equity awards to all of our officers. Decisions regarding the non-equity compensation of our other officers are made by our
President and Chief Executive Officer.
The Compensation Committee and the President and Chief Executive Officer annually review the performance of each named
executive officer (other than the President and Chief Executive Officer, whose performance is reviewed only by the Compensation
Committee). The conclusions reached and recommendations based on these reviews, including with respect to salary adjustments and
annual award amounts, are presented to the Compensation Committee. The Compensation Committee can exercise its discretion in
modifying any recommended adjustments or awards to executives.
Setting Executive Compensation
Based on the foregoing objectives, the Compensation Committee has structured the Company’s annual cash and incentive-based
cash and non-cash executive compensation to seek to motivate our named executives to achieve the business goals set by the
Company, to reward the executives for achieving such goals, and to retain the executives. In doing so, the Compensation Committee
historically has not employed outside compensation consultants. However, during 2007, the Compensation Committee did obtain and
use in its compensation deliberations several third-party industry compensation surveys to establish cash and equity compensation for
our executive officers. The Compensation Committee utilized this data to set compensation for our executive officers at levels targeted
at or around a range of compensation amounts provided to executives at comparable companies considering, for each individual, their
individual experience level related to their position with us. There is no pre-established policy or target for the allocation between
either cash and non-cash incentive compensation.
2007 Executive Compensation Components
For 2007, the principal components of compensation for the named executive officers were:
•
base salary;
44
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
•
•
annual bonuses; and
equity incentive compensation.
Base Salary
The Company provides named executive officers and other employees with base salary to compensate them for services rendered
during the year. Base salary ranges for the named executive officers are determined for each named executive officer based on his
position and responsibility.
During its review of base salaries for executives, the Compensation Committee primarily considers:
•
•
•
the negotiated terms of each executive employment agreement;
internal review of the executive’s compensation, both individually and relative to other named executive officers; and
individual performance of the executive.
Salary levels are typically considered annually as part of the company’s performance review process, as well as upon a change in
job responsibility. Merit-based increases to salaries are based on the Compensation Committee’s assessment of the individual’s
performance. Base salaries for the named executive officers in 2007 were increased from the base salaries in effect during the prior
year by amounts ranging from 7% for our prior Chief Financial Officer to 25% for our Chief Scientific Officer. Unless increased by
the Compensation Committee, the salary for Mr. Kriegsman will remain in effect until the expiration of his employment agreement on
December 31, 2009, while the salaries of the other named executive officers will remain in effect until the expiration of their
respective employment agreements. The salaries and other terms of employment of Dr. Barber, our Chief Scientific Officer, and
Mr. Levin, our General Counsel, Vice President — Legal Affairs and Corporate Secretary, are in the process of being negotiated with
our compensation committee, as their employment is now month-to-month following the expiration of their employment agreements
on December 31, 2007.
Annual and Special Bonuses
The Compensation Committee has not established an incentive compensation program with fixed performance targets. Because we
do not generate significant revenues and have not commercially released any products, the Compensation Committee bases its
discretionary compensation awards on the achievement of product development targets and milestones, effective fund-raising efforts,
and effective management of personnel and capital resources, among other criteria. During 2007, the Compensation Committee
granted Mr. Levin and Mr. Natalizio special bonuses of 10,000 and 5,000 shares of RXi common stock, respectively, in recognition of
their efforts in establishing RXi as a stand-alone company. During 2007, the Compensation Committee granted Mr. Kriegsman an
annual cash bonus of $400,000 and granted cash bonuses to the other named executive officers ranging from $15,000 to $151,000,
each in conjunction with the end of their employment contract years, because of their efforts in helping us advance the development of
our products, raise working capital and achieve other corporate goals.
On March 11, 2008, the record date for our recent distribution of RXi shares to our stockholders, we awarded approximately
27,700 shares of RXi to our directors, officers and other employees, including the named executive officers, in connection with our
separation from RXi to compensate those directors, officers and other employees for services performed in connection with the
separation. Each of our directors, officers and other employees who held stock options to purchase our common stock received that
number of RXi shares that such individual would have received in the separation, assuming such individual had, on the record date for
the separation, exercised, in full, on a “net-exercise” basis, all such stock options to the extent then exercisable.
Equity Incentive Compensation
As indicated above, the Compensation Committee also aims to encourage the company’s executive officers to focus on long-term
company performance by allocating to them stock options that vest over a period of several years. In 2007, the Compensation
Committee granted to Mr. Kriegsman a nonqualified option to purchase 350,000 shares of our common stock at a price of $4.51 per
share, which equaled the closing market price on the date of grant. The option vests monthly over three years, provided that
Mr. Kriegsman continues in our employ through such monthly vesting periods. In addition, in connection with the hiring of Mitchell
K. Fogelman as Chief Financial Officer, and the annual review of our other named executive officers, the Compensation Committee
also
45
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
granted stock options to those named executive officers. All of these other stock options had an exercise price equal to the closing
market price on the date of grant, and also vest monthly over three years, provided that such executives remain in our employ through
such monthly vesting periods.
Retirement Plans, Perquisites and Other Personal Benefits
We have adopted a tax-qualified employee savings and retirement plan, the 401(k) Plan, for eligible United States employees,
including our named executive officers. Eligible employees may elect to defer a percentage of their eligible compensation in the
401(k) Plan, subject to the statutorily prescribed annual limit. We may make matching contributions on behalf of all participants in the
401(k) Plan in an amount determined by our board of directors. Matching and profit-sharing contributions, if any, are subject to a
vesting schedule; all other contributions are at all times fully vested. We intend the 401(k) Plan, and the accompanying trust, to qualify
under Sections 401(k) and 501 of the Internal Revenue Code so that contributions by employees to the 401(k) Plan, and income earned
(if any) on plan contributions, are not taxable to employees until withdrawn from the 401(k) Plan, and so that we will be able to deduct
our contributions, if any, when made. The trustee under the 401(k) Plan, at the direction of each participant, may invest the assets of
the 401(k) Plan in any of a number of investment options.
We do not provide any of our executive officers with any other perquisites or personal benefits, other than benefits that we offer
Mr. Kriegsman provided for in his employment agreement. As required by his employment agreement, during 2007 we paid insurance
premiums with respect to a life insurance policy for Mr. Kriegsman which had a face value of approximately $1.4 million as of
December 31, 2007 and under which Mr. Kriegsman’s designee is the beneficiary.
Our stock option plans provide that all unvested options held by our employees, including the named executive officers,
immediately vest upon a change of control. In addition, under our employment agreement with Mr. Kriegsman, and if, during the term
and within two years after the date on which the change in control occurs, Mr. Kriegsman’s employment is terminated by us without
“cause” or by him for “good reason” (each as defined in his employment agreement), then, to the extent that any payment or
distribution of any type by us to or for the benefit of Mr. Kriegsman resulting from the termination of his employment is or will be
subject to the excise tax, we have agreed to pay Mr. Kriegsman an additional amount that, after the imposition of all income,
employment, excise and other taxes, penalties and interest thereon, is equal to the sum of (i) the excise tax on such payments plus
(ii) any penalty and interest assessments associated with such excise tax. Except as described above, we do not have in effect any
change of control provisions for payment to any named executive officer in the event of a change in control of CytRx.
Ownership Guidelines
The Compensation Committee has no requirement that each named executive officer maintain a minimum ownership interest in our
company.
Our long-term incentive compensation consists solely of periodic grants of stock options to our named executive officers. The
stock option program:
•
•
•
•
links the creation of stockholder value with executive compensation;
provides increased equity ownership by executives;
functions as a retention tool, because of the vesting features included in all options granted by the Compensation Committee;
and
maintains competitive levels of total compensation.
We normally grant stock options to new executive officers when they join our company based upon their position with us and their
relevant prior experience. The options granted by the Compensation Committee generally vest monthly over the first three years of the
ten-year option term. Vesting and exercise rights cease upon termination of employment (or, in the case of exercise rights, 90 days
thereafter), except in the case of death (subject to a one-year limitation), disability or retirement. Prior to the exercise of an option, the
holder has no rights as a stockholder with respect to the shares subject to such option, including voting rights and the right to receive
dividends or dividend equivalents. In addition to the initial option grants, our Compensation Committee may grant additional options
to retain our executives and reward, or provide incentive for, the achievement of corporate goals and strong individual performance.
Our Board of Directors has granted our President and Chief Executive Officer discretion to grant up to 100,000 options to employees
46
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
upon joining our company, and to grant an additional “discretionary pool” of up to 100,000 options during each annual employee
review cycle. Options are granted based on a combination of individual contributions to our company and on general corporate
achievements, which may include the attainment of product development milestones (such as commencement and completion of
clinical trials) and attaining other annual corporate goals and objectives. On an annual basis, the Compensation Committee assesses
the appropriate individual and corporate goals for our new executives and provides additional option grants based upon the
achievement by the new executives of both individual and corporate goals. We expect that we will continue to provide new employees
with initial option grants in the future to provide long-term compensation incentives and will continue to rely on performance-based
and retention grants to provide additional incentives for current employees. Additionally, in the future, the Compensation Committee
may consider awarding additional or alternative forms of equity incentives, such as grants of restricted stock, restricted stock units and
other performance-based awards.
It is our policy to award stock options at an exercise price equal to The NASDAQ Capital Market’s closing price of our common
stock on the date of the grant. In certain limited circumstances, the Compensation Committee may grant options to an executive at an
exercise price in excess of the closing price of the common stock on the grant date. The Compensation Committee has never granted
options with an exercise price that is less than the closing price of our common stock on the grant date, nor has it granted options
which are priced on a date other than the grant date. For purposes of determining the exercise price of stock options, the grant date is
deemed to be the first day of employment for newly hired employees, or the date on which the Compensation Committee or the Chief
Executive Officer, as applicable, approves the stock option grant to existing employees.
We have no program, practice or plan to grant stock options to our executive officers, including new executive officers, in
coordination with the release of material nonpublic information. We also have not timed the release of material nonpublic information
for the purpose of affecting the value of stock options or other compensation to our executive officers, and we have no plan to do so.
We have no policy regarding the adjustment or recovery of stock option awards in connection with the restatement of our financial
statements, as our stock option awards have not been tied to the achievement of specific financial goals.
Tax and Accounting Implications
Deductibility of Executive Compensation
As part of its role, the Compensation Committee reviews and considers the deductibility of executive compensation under Section
162(m) of the Internal Revenue Code, which provides that corporations may not deduct compensation of more than $1,000,000 that is
paid to certain individuals. We believe that compensation paid to our executive officers generally is fully deductible for federal
income tax purposes.
Accounting for Share-Based Compensation
Beginning on January 1, 2006, we began accounting for share-based compensation in accordance with the requirements of FASB
Statement 123(R), Share-Based Payment. This accounting treatment has not significantly affected our compensation decisions. The
Compensation Committee takes into consideration the tax consequences of compensation to the named executive officers, but tax
considerations are not a significant part of the company’s compensation policy.
Compensation Committee Interlocks and Insider Participation in Compensation Decisions
There are no “interlocks,” as defined by the SEC, with respect to any member of the Compensation Committee. Joseph Rubinfeld,
Ph.D., Marvin R. Selter and Richard L. Wennekamp served as all of the members of the Compensation Committee during 2007.
Compensation Committee Report
The Compensation Committee has reviewed and discussed with management the “Compensation Discussion and Analysis”
required by Item 402(b) of Regulation S-K and, based on such review and discussions, has recommended to our board of directors that
the foregoing “Compensation Discussion and Analysis” be included in this Annual Report.
Joseph Rubinfeld, Ph.D., Chairman
Marvin R. Selter
47
Richard L. Wennekamp
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Summary Compensation Table
The following table presents summary information concerning all compensation paid or accrued by us for services rendered in all
capacities during 2007 and 2006 by Steven A. Kriegsman, Mitchell K. Fogelman and Matthew Natalizio, who are the only individuals
who served as our principal executive and financial officers during the year ended December 31, 2007, and our three other most
highly compensated executive officers who were serving as executive officers as of December 31, 2007:
Name and Position
Steven A. Kriegsman
President and Chief
Executive Officer
Mitchell K. Fogelman
Chief Financial Officer
and Treasurer (3)
Matthew Natalizio
Chief Financial Officer
and Treasurer (3)
Jack R. Barber, Ph.D.
Chief Scientific Officer
Benjamin S. Levin General
Counsel, Vice President
— Legal Affairs and
Secretary
Tod Woolf, Ph.D.
President and Chief
Executive Officer of
RXi Pharmaceuticals
Corporation (4)
(1)
(2)
Summary Compensation Table
Year
Salary ($)
Bonus
($) (1)
Option
Awards
($) (2)
All Other
Compensation ($)
Total
($)
2007
2006
524,767
417,175
—
800,000
295,534
340,426
2007
76,763
—
35,665
—
—
—
2007
2006
2007
2006
175,573
204,115
327,074
261,750
—
83,000
—
78,472
5,224(5)
—
—
218,750
168,876
90,544
2007
2006
250,000
208,170
—
219,750
84,438
120,550
820,301
1,557,601
112,428
180,797
365,587
495,950
571,044
334,438
548,470
—
—
—
—
2007
2006
216,347
—
87,500
—
236,433(6)
—
33,302(7)
115,830(7)
573,582
115,830
Bonuses to the named executive officers reported above
relating to 2006 were paid in both June 2006, in
connection with the contractual year end for those
officers, and also in April 2007, following our decision
to determine and award bonuses in connection with each
fiscal year end. For purposes of this table, the entire
amount of the bonus paid as attributed to 2006 has been
presented as a 2006 amount. We plan to determine and
award annual bonuses for 2007 at our next regularly
scheduled Compensation Committee meeting, and we
will report any bonuses so awarded when made in a
Current Report on Form 8-K. The bonus for Dr. Woolf
was paid by RXi on January 10, 2008.
The values shown in this column represent the dollar
amount recognized for financial statement reporting
purposes with respect to the 2006 and 2007 fiscal years
for the fair value of stock options granted in 2006 and
2007 and prior fiscal years in accordance with SFAS
123(R). Pursuant to SEC rules, the amounts shown
exclude the impact of estimated forfeitures related to
service-based vesting conditions. The amount
recognized for these awards was calculated using the
Black Scholes option-pricing model, and reflect grants
from our 2000 Long-Term Incentive Plan, which is
described in Note 12 of the Notes to Consolidated
Source: CYTRX CORP, 10-K, April 01, 2008
(3)
(4)
(5)
(6)
(7)
Financial Statements.
Mr. Natalizio served as our Chief Financial Officer and
Treasurer through September 7, 2007, and
Mr. Fogelman has served in that capacity since
September 11, 2007.
As of March 11, 2008, we no longer owned a majority
of the outstanding common stock of RXi, and thus
Mr. Woolf is no longer considered an executive officer
of CytRx. Amounts reported above with respect to
Dr. Woolf were paid by RXi unless otherwise noted.
Represents premiums paid for medical, dental and
vision insurance for Mr. Natalizio following his
resignation in September 2007.
Represents the fair value of RXi employee stock options
issued to Dr. Woolf.
Consists of $33,000 and $115,830 in consulting fees
paid by CytRx Corporation in 2007 and 2006,
respectively, and $302 of life insurance premiums paid
by RXi in 2007.
48
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
2007 Grants of Plan-Based Awards
In 2007, we granted stock options to our named executive officers under our 2000 Long-Term Incentive Plan as follows:
Name
Steven A. Kriegsman
President and Chief Executive Officer
Mitchell K. Fogelman
Chief Financial Officer and Treasurer
Matthew Natalizio
Chief Financial Officer and Treasurer
Jack R. Barber, Ph.D.
Chief Scientific Officer
Benjamin S. Levin
General Counsel, Vice President — Legal
Affairs and Secretary
Tod Woolf, Ph.D. (1)
President and Chief Executive Officer of
RXi Pharmaceuticals Corporation
(1)
2007 Grants of Plan-Based Awards
Grant Date
4/18/2007
All Other
Option Awards
(# of CytRx
Shares)
350,000
Exercise Price of
Option Awards
($/Sh)
$ 4.51
Grant Date
Fair Value of
Option Awards
($)
$1,328,600
9/11/2007
150,000
$ 3.40
$ 426,600
—
4/18/2007
4/18/2007
—
200,000
100,000
—
$ 4.51
$ 4.51
—
$ 759,200
$ 379,600
—
—
—
—
No stock options were awarded by CytRx to Dr. Woolf
in 2007. On May 23, 2007, RXi granted to Dr. Woolf
ten-year options to purchase 316,994 shares of RXi’s
common stock under the RXi Pharmaceutical
Corporation 2007 Incentive Plan at an exercise price of
$5.00 per share.
2000 Long-Term Incentive Plan
The purpose of our 2000 Long-Term Incentive Plan is to promote our success and enhance our value by linking the personal
interests of our employees, officers, consultants and directors to those of our stockholders, and by providing our employees, officers,
consultants and directors with an incentive for outstanding performance. The Plan was originally adopted by our board of directors on
August 24, 2000 and by our stockholders on June 7, 2001, with certain amendments to the Plan having been subsequently approved by
our board of directors and stockholders.
The Plan authorizes the granting of awards to our employees, officers, consultants and directors and to employees, officers,
consultants and directors of our subsidiaries. The following awards are available under the Plan:
•
•
•
•
•
•
options to purchase shares of common stock, which may be incentive stock options or non-qualified stock options;
stock appreciation rights;
restricted stock;
performance units;
dividend equivalents; and
other stock-based awards.
The aggregate number of shares of our common stock reserved and available for awards under the Plan is 10,000,000 shares. As of
March 28, 2008, there were 6,075,300 shares previously issued or subject to outstanding Plan awards and 2,116,253 shares were
reserved for issuance pursuant to future awards under the Plan. The maximum number of shares of common stock with respect to one
or more options and stock appreciation rights that we may grant during any one calendar year under the Plan to any one participant is
1,000,000; except that in connection with his or her initial employment with the company or an affiliate, a participant may be granted
49
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
options for up to an additional 1,000,000 shares. The maximum fair market value of any awards that any one participant may receive
during any one calendar year under the Plan is $1,000,000, not including the value of options and stock appreciation rights (less any
consideration paid by the participant for such award). We also have two other plans, the 1994 Stock Option Plan and the 1998 Long
Term Incentive Plan, which include 9,167 and 100,041 shares subject to outstanding stock options. As the terms of the plans provide
that no options may be issued after 10 years, no options are available under the 1994 Plan. Under the 1998 Long Term Incentive Plan,
29,517 shares are available for future grant.
Administration
The Plan is administered by the Compensation Committee of our board of directors. The Compensation Committee has the power,
authority and discretion to:
•
•
•
•
designate participants;
determine the types of awards to grant to each participant and the number, terms and conditions of any award;
establish, adopt or revise any rules and regulations as it may deem necessary or advisable to administer the Plan; and
make all other decisions and determinations that may be required under, or as the Compensation Committee deems necessary
or advisable to administer, the Plan.
Awards
The following is summary description of financial instruments that may be granted to participants by the Compensation Committee
of our board of directors. The Compensation Committee to date has only granted stock options to participants in the Plan.
Stock Options. The Compensation Committee is authorized to grant both incentive stock options and non-qualified stock options.
The terms of any incentive stock option must meet the requirements of Section 422 of the Internal Revenue Code. The exercise price
of an option may not be less than the fair market value of the underlying stock on the date of grant, and no option may have a term of
more than 10 years from the grant date.
Stock Appreciation Rights. The Compensation Committee may grant stock appreciation rights to participants. Upon the exercise of
a stock appreciation right, the participant has the right to receive the excess, if any, of (1) the fair market value of one share of
common stock on the date of exercise, over (2) the grant price of the stock appreciation right as determined by the Compensation
Committee, which will not be less than the fair market value of one share of common stock on the date of grant.
Restricted Stock. The Compensation Committee may make awards of restricted stock, which will be subject to such restrictions on
transferability and other restrictions as the Compensation Committee may impose (including limitations on the right to vote restricted
stock or the right to receive dividends, if any, on the restricted stock).
Performance Units. The Compensation Committee may grant performance units on such terms and conditions as may be selected
by the Compensation Committee. The Compensation Committee will have the complete discretion to determine the number of
performance units granted to each participant and to set performance goals and other terms or conditions to payment of the
performance units which, depending on the extent to which they are met, will determine the number and value of performance units
that will be paid to the participant.
Dividend Equivalents. The Compensation Committee is authorized to grant dividend equivalents to participants subject to such
terms and conditions as may be selected by the Compensation Committee. Dividend equivalents entitle the participant to receive
payments equal to dividends with respect to all or a portion of the number of shares of common stock subject to an option or other
award, as determined by the Compensation Committee. The Compensation Committee may provide that dividend equivalents be paid
or distributed when accrued or be deemed to have been reinvested in additional shares of common stock, or otherwise reinvested.
Other Stock-Based Awards. The Compensation Committee may grant other awards that are payable in, valued in whole or in part
by reference to, or otherwise based on or related to shares of common stock, as deemed by the Compensation Committee to be
consistent with the purposes of the Plan. These stock-based awards may include shares of common stock awarded as a bonus and not
subject to any restrictions or conditions, convertible or exchangeable debt securities, other rights convertible or exchangeable into
50
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
shares of common stock, and awards valued by reference to book value of shares of common stock or the value of securities of or the
performance of our subsidiaries. The Compensation Committee will determine the terms and conditions of any such awards.
Performance Goals. The Compensation Committee in its discretion may determine awards based on:
•
•
•
•
•
the achievement by CytRx or a parent or subsidiary of a specific financial target;
CytRx’s stock price;
the achievement by an individual or a business unit of CytRx or a subsidiary of a specific financial target;
the achievement of specific goals with respect to (i) product development milestones, (ii) corporate financings, (iii) merger
and acquisition activities, (iv) licensing transactions, (v) development of strategic partnerships or alliances, or (vi) acquisition
or development of new technologies; and
any combination of the goals set forth above.
The Compensation Committee has the right for any reason to reduce (but not increase) any award, even if a specific goal has been
achieved. If an award is made on the basis of the achievement of a goal, the Compensation Committee must have established the goal
before the beginning of the period for which the performance goal relates (or a later date as may be permitted under Internal Revenue
Code Section 162(m)). Any payment of an award for achieving a goal will be conditioned on the written certification of the
Compensation Committee in each case that the goals and any other material conditions were satisfied.
Limitations on Transfer; Beneficiaries. Awards under the Plan may not be transferred or assigned by Plan participants other than
by will or the laws of descent and distribution and, in the case of an incentive stock option, pursuant to a qualified domestic relations
order, provided that the Compensation Committee may (but need not) permit other transfers where the Compensation Committee
concludes that such transferability (1) does not result in accelerated taxation, (2) does not cause any option intended to be an incentive
stock option to fail to qualify as such, and (3) is otherwise appropriate and desirable, taking into account any factors deemed relevant,
including any state or federal tax or securities laws or regulations applicable to transferable awards. A Plan participant may, in the
manner determined by the Compensation Committee, designate a beneficiary to exercise the participant’s rights and to receive any
distribution with respect to any award upon the participant’s death.
Acceleration Upon Certain Events. In the event of a “Change in Control” of CytRx, which is a term defined in the Plan, all
outstanding options and other awards in the nature of rights that may be exercised will become fully vested and exercisable and all
restrictions on all outstanding awards will lapse. The Compensation Committee may, however, in its sole discretion declare all
outstanding options, stock appreciation rights and other awards in the nature of rights that may be exercised to become fully vested
and exercisable, and all restrictions on all outstanding awards to lapse, in each case as of such date as the Compensation Committee
may, in its sole discretion, declare. The Compensation Committee may discriminate among participants or among awards in exercising
such discretion.
Termination and Amendment
Our board of directors or the Compensation Committee may, at any time and from time to time, terminate or amend the Plan
without stockholder approval; provided, however, that our board or the Compensation Committee may condition any amendment on
the approval of our stockholders if such approval is necessary or deemed advisable with respect to tax, securities or other applicable
laws, policies or regulations. No termination or amendment of the Plan may adversely affect any award previously granted without the
written consent of the participants affected. The Compensation Committee may amend any outstanding award without the approval of
the participants affected, except that no such amendment may diminish the value of an award determined as if it has been exercised,
vested, cashed in or otherwise settled on the date of such amendment, and, except as otherwise permitted in the Plan, the exercise price
of any option may not be reduced and the original term of any option may not be extended.
51
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Holdings of Previously Awarded Equity
Equity awards held as of December 31, 2007 by each of our named executive officers were issued under our 2000 Long-Term
Incentive Plan. The following table sets forth outstanding equity awards held by our named executive officers as of December 31,
2007:
2007 Outstanding Equity Awards at Fiscal Year-End
Option Awards
Number of
Securities
Underlying
Unexercised
Options
(#)
Name
Steven A. Kriegsman
President and Chief Executive Officer
Mitchell K. Fogelman
Chief Financial Officer and Treasurer
Matthew Natalizio
Chief Financial Officer and Treasurer
Jack R. Barber, Ph.D.
Chief Scientific Officer
Benjamin S. Levin
General Counsel, Vice President —
Legal
Affairs and Secretary
Tod Woolf, Ph.D. (3)
President and Chief Executive Officer of
RXi Pharmaceuticals Corporation
Exercisable
77,854
100,028
258,307
250,000
750,000
12,539
—
44,488
50,014
129,154
100,000
22,244
45,013
141,652
160,000
—
(1)
(1)
(1)
(2)
(2)
(1)
(1)
(1)
(1)
(2)
(1)
(1)
(1)
(2)
(1)
(2)
(3)
Unexercisable
272,146
99,972
41,693
—
—
137,461
Option
Exercise
Price
($)
4.51
1.38
.79
2.47
2.47
3.40
—
—
155,512
49,986
20,846
—
77,756
44,987
8,348
—
—
4.51
1.38
.79
1.13
4.51
1.38
.79
1.39
—
Option
Expiration
Date
4/18/17
6/16/16
5/17/15
6/19/13
6/20/13
9/11/17
—
4/18/17
6/16/16
5/17/15
7/06/14
4/18/17
6/16/16
5/17/15
7/15/14
—
These options vest in 36 equal monthly installments,
subject to the option holder’s remaining in our
continuous employ through such dates.
These options vest in three annual installments, subject
to the option holder’s remaining in our continuous
employ through such dates.
Dr. Woolf has not been issued any equity by CytRx. On
May 23, 2007, RXi granted to Dr. Woolf ten-year
options to purchase 316,994 shares of RXi’s common
stock under the RXi Pharmaceutical Corporation 2007
Incentive Plan at an exercise price of $5.00 per share.
As of December 31, 2007, 61,709 of those stock options
were exercisable, and the remaining 255,285 options
were not exercisable.
Option Exercises and Stock Vested
The following table provides information regarding exercises of stock options by each of our named executive officers during
2007:
2007 Exercises of Plan-Based Awards
Name
Steven A. Kriegsman
Source: CYTRX CORP, 10-K, April 01, 2008
Number of
Shares Acquired
on Exercise
—
Value Realized
On Exercise ($)(1)
$ —
President and Chief Executive Officer
52
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Name
Mitchell K. Fogelman
Chief Financial Officer and Treasurer
Matthew Natalizio
Chief Financial Officer and Treasurer
Jack R. Barber, Ph.D.
Chief Scientific Officer
Benjamin S. Levin
General Counsel, Vice President — Legal Affairs and Secretary
Tod Woolf, Ph.D.
President and Chief Executive Officer of RXi Pharmaceuticals Corporation
(1)
Number of
Shares Acquired
on Exercise
—
237,496
—
—
—
Value Realized
On Exercise ($)(1)
$
—
$582,437
$
$
$
—
—
—
Represents the difference between the exercise price
and the fair market value of the common stock on the
date of exercise.
Employment Agreements and Potential Payment upon Termination or Change in Control
Employment Agreement with Steven A. Kriegsman
Mr. Kriegsman is employed as our Chief Executive Officer and President pursuant to an employment agreement that was amended
as of May 2007 to continue through December 31, 2009. The employment agreement will automatically renew in December 2009 for
an additional one-year period, unless either Mr. Kriegsman or we elect not to renew it.
Under his employment agreement as amended, Mr. Kriegsman is entitled to receive an annual base salary of $500,000. Our board
of directors (or its Compensation Committee) will review the base salary annually and may increase (but not decrease) it in its sole
discretion. In addition to his annual salary, Mr. Kriegsman is eligible to receive an annual bonus as determined by our board of
directors (or its Compensation Committee) in its sole discretion, but not to be less than $150,000. Pursuant to his employment
agreement with us, we have agreed that he shall serve on a full-time basis as our Chief Executive Officer and President and that he
may continue to serve as Chairman of the Kriegsman Group only so long as necessary to complete certain current assignments.
Mr. Kriegsman is eligible to receive grants of options to purchase shares of our common stock. The number and terms of those
options, including the vesting schedule, will be determined by our board of directors (or its Compensation Committee) in its sole
discretion.
Under Mr. Kriegsman’s employment agreement, we have agreed that, if he is made a party, or threatened to be made a party, to a
suit or proceeding by reason of his service to us, we will indemnify and hold him harmless from all costs and expenses to the fullest
extent permitted or authorized by our certificate of incorporation or bylaws, or any resolution of our board of directors, to the extent
not inconsistent with Delaware law. We also have agreed to advance to Mr. Kriegsman such costs and expenses upon his request if he
undertakes to repay such advances if it ultimately is determined that he is not entitled to indemnification with respect to the same.
These employment agreement provisions are not exclusive of any other rights to indemnification to which Mr. Kriegsman may be
entitled and are in addition to any rights he may have under any policy of insurance maintained by us.
In the event we terminate Mr. Kriegsman’s employment without “cause” (as defined), or if Mr. Kriegsman terminates his
employment with “good reason” (as defined), (i) we have agreed to pay Mr. Kriegsman a lump-sum equal to his salary and prorated
minimum annual bonus through to his date of termination, plus his salary and minimum annual bonus for a period of two years after
his termination date, or until the expiration of the amended and restated employment agreement, whichever is later, (ii) he will be
entitled to immediate vesting of all stock options or other awards based on our equity securities, and (iii) he will also be entitled to
continuation of his life insurance premium payments and continued participation in any of our health plans through to the later of the
expiration of the amended and restated employment agreement or 24 months following his termination date. Mr. Kriegsman will have
no obligation in such events to seek new employment or offset the severance payments to him by any compensation received from any
subsequent reemployment by another employer.
Under Mr. Kriegsman’s employment agreement, he and his affiliated company, The Kriegsman Group, are to provide us during the
term of his employment with the first opportunity to conduct or take action with respect to any acquisition opportunity or any other
potential transaction identified by them within the biotech, pharmaceutical or health care industries and that is within the scope of the
business plan adopted by our board of directors. Mr. Kriegsman’s employment agreement also contains confidentiality provisions
relating to our trade secrets and any other proprietary or confidential information, which provisions shall remain in effect for five
53
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
years after the expiration of the employment agreement with respect to proprietary or confidential information and for so long as our
trade secrets remain trade secrets.
Potential Payment upon Termination or Change in Control for Steven A. Kriegsman
Mr. Kriegsman’s employment agreement contains no provision for payment to him in the event of a change in control of CytRx. If,
however, a change in control (as defined in our 2000 Long-Term Incentive Plan) occurs during the term of the employment
agreement, and if, during the term and within two years after the date on which the change in control occurs, Mr. Kriegsman’s
employment is terminated by us without cause or by him for good reason (each as defined in his employment agreement), then, in
addition to the severance benefits described above, to the extent that any payment or distribution of any type by us to or for the benefit
of Mr. Kriegsman resulting from the termination of his employment is or will be subject to the excise tax imposed under Section 4999
of the Internal Revenue Code of 1986, as amended, we have agreed to pay Mr. Kriegsman, prior to the time the excise tax is payable
with respect to any such payment (through withholding or otherwise), an additional amount that, after the imposition of all income,
employment, excise and other taxes, penalties and interest thereon, is equal to the sum of (i) the excise tax on such payments plus
(ii) any penalty and interest assessments associated with such excise tax.
Employment Agreement with Mitchell K. Fogelman
Mitchell K. Fogelman is employed as our Chief Financial Officer and Treasurer pursuant to an employment agreement dated as of
September 11, 2007 that expires on December 31, 2008. Mr. Fogelman is entitled under his employment agreement to receive an
annual base salary of $250,000 and is eligible to receive an annual bonus as determined by our board of directors (or its Compensation
Committee) in its sole discretion. As an incentive to enter into his employment agreement, Mr. Fogelman was granted as of
September 11, 2007, a ten-year, nonqualified option under our 2000 Long-Term Incentive Plan to purchase 150,000 shares of our
common stock at a price of $3.40 per share. This option will vest as to 1/36th of the shares covered thereby each month after the date
of the employment agreement, provided that Mr. Fogelman remains in our continuous employ.
In the event we terminate Mr. Fogelman’s employment without cause (as defined), we have agreed to pay him a lump-sum equal to
his accrued but unpaid salary and vacation, plus an amount equal to six months’ salary under his employment agreement.
Employment Agreement with Jack R. Barber, Ph.D.
Jack R. Barber, Ph.D. is employed as our Chief Scientific Officer on a month-to-month basis following the expiration of an
employment agreement that is in the process of being renegotiated after expiring on December 31, 2007. Dr. Barber is paid an annual
base salary of $325,000 and is eligible to receive an annual bonus as determined by our board of directors (or its Compensation
Committee) in its sole discretion.
In the event we terminate Dr. Barber’s employment without cause (as defined), we have agreed to pay him a lump-sum equal to his
accrued but unpaid salary and vacation, plus an amount equal to three months’ base salary.
Employment Agreement with Benjamin S. Levin
Benjamin S. Levin is employed as our Vice President — Legal Affairs, General Counsel and Secretary on a month-to-month basis
following the expiration of an employment agreement that is in the process of being renegotiated after expiring on December 31,
2007. Mr. Levin is paid an annual base salary of $250,000 and is eligible to receive an annual bonus as determined by our board of
directors (or its Compensation Committee) in its sole discretion.
In the event we terminate Mr. Levin’s employment without cause (as defined), we have agreed to pay him a lump-sum equal to his
accrued but unpaid salary and vacation, plus an amount equal to six months’ base salary.
Employment Agreement with Tod Woolf, Ph.D.
CytRx and RXi entered into an employment agreement with Tod Woolf, Ph.D. dated February 22, 2007, under which Dr. Woolf is
engaged to continue his employment as RXi’s President and Chief Executive Officer through December 31, 2008. Dr. Woolf is
entitled under his employment agreement to receive an annual base salary of $250,000 and has been granted by RXi a ten-year option
to purchase 316,994 shares of RXi common stock at an exercise price of $5.00 per share. This option will vest in equal monthly
installments over three years, subject to accelerated vesting in certain events.
54
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
In the event Dr. Woolf’s employment is terminated without “cause” (as defined) or Dr. Woolf terminates his employment for
“good reason” (as defined), RXi has agreed to pay him a lump sum equal to his base salary for the longer of twelve months and the
remainder of the term of his employment agreement, but in no event less than $125,000.
Quantification of Termination Payments and Benefits
The table below reflects the amount of compensation to each of our named executive officers in the event of termination of such
executive’s employment by his voluntary resignation or termination, by a termination of the executive’s employment without “cause”
or his resignation for “good reason,” termination following a change in control and in the event of the executive’s permanent disability
or death of the executive is shown below. The amounts assume that such termination was effective as of December 31, 2007, and thus
includes amounts earned through such time and are estimates of the amounts which would be paid out to the executives upon their
termination. The actual amounts to be paid out can only be determined at the time of such executive’s separation.
Name
Steven A.
Benefit
Severance Payment
Kriegsman
President and
Chief
Executive
Stock Options (1)
Health Insurance (2)
Life Insurance
Bonus
Tax Gross Up (3)
Severance Payment
Stock Options (1)
Severance Payment
Stock Options (1)
Severance Payment
Stock Options (1)
Officer
Mitchell K.
Fogelman
Chief
Financial
Officer and
Treasurer
Jack R. Barber,
Ph.D.
Chief
Scientific
Officer
Benjamin S.
Levin
General
Counsel,
Vice
President
— Legal
Affairs and
Secretary
Tod Woolf,
Ph.D.(4)
President and
Chief
Executive
Severance Payment
Stock Options (1)
Officer of RXi Benefits
Termination Payments and Benefits
Termination w/o Cause or
for Good Reason
Before Change in
Control ($)
After Change in
Control ($)
Death ($)
Disability
$
Change in
Control ($)
1,000,000
1,000,000
1,000,000
1,000,000
—
231,430
45,704
11,350
300,000
—
125,000
—
68,750
—
45,704
11,350
300,000
0
125,000
—
68,750
—
—
125,000
125,000
—
—
250,000
250,000
449,000
14,500
—
14,500
231,430
45,704
—
300,000
—
231,430
45,704
11,350
300,000
—
231,430
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
115,714
—
82,793
—
978,098
—
(1)
(2)
Source: CYTRX CORP, 10-K, April 01, 2008
Represents the aggregate value of stock options that vest
and become exercisable immediately upon each of the
triggering events listed as if such events took place on
December 31, 2007, determined by the aggregate
difference between the stock price as of December 31,
2007 and the exercise prices of the underlying options.
Represents the cost as of December 31, 2007 for the
family health benefits provided to Mr. Kriegsman for a
period of two years.
(3)
(4)
Mr. Kriegsman’s employment agreement provides that
if a change in control (as defined in our 2000
Long-Term Incentive Plan) occurs during the term of
the employment agreement, and if, during the term and
within two years after the date on which the change in
control occurs, Mr. Kriegsman’s employment is
terminated by us without cause or by him for good
reason (each as defined in his employment agreement),
then, to the extent that any payment or distribution of
any type by us to or for the benefit of Mr. Kriegsman
resulting from the termination of his employment is or
will be subject to the excise tax imposed under
Section 4999 of the Internal Revenue Code of 1986, as
amended, we will pay Mr. Kriegsman, prior to the time
the excise tax is payable with respect to any such
payment (through withholding or otherwise), an
additional amount that, after the imposition of all
income, employment, excise and other taxes, penalties
and interest thereon, is equal to the sum of (i) the excise
tax on such payments plus (ii) any penalty and interest
assessments associated with such excise tax. Based on
Mr. Kriegsman’s past compensation and the estimated
payment that would result from a termination of his
employment following a change in control, we have
estimated that a gross-up payment would not be
required.
As of March 11, 2008, we no longer owned a majority
of the outstanding common stock of RXi
Pharmaceuticals Corporation, and thus Mr. Woolf is no
longer considered an executive officer of CytRx.
Amounts reported above with respect to Dr. Woolf
would be payable by RXi. Stock option amounts for
Dr. Woolf relate to options to purchase RXi common
stock granted pursuant to the RXi Pharmaceutical
Corporation 2007 Incentive Plan.
55
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
In connection with Mr. Natalizio’s resignation as our Chief Financial Officer in September 2007, we paid approximately $5,000 of
premiums for continuing medical, dental and vision insurance.
Compensation of Directors
The following table sets forth the compensation paid to our directors other than our Chief Executive Officer for 2007:
Director Compensation Table
Name (1)
Max Link, Ph.D.
Chairman
Marvin R. Selter
Vice Chairman
Louis Ignarro, Ph.D.
Director
Joseph Rubinfeld, Ph.D.
Director
Richard Wennekamp
Director
(1)
(2)
(3)
Fees Earned or
Paid in Cash
($) (2)
108,173
169,834
26,750
80,066
76,990
Option
Awards
($) (3)
70,000
70,000
70,000
70,000
70,000
Total
($)
178,173
239,834
96,750
150,066
146,990
Steven A. Kriegsman does not receive additional
compensation for his role as a Director. For information
relating to Mr. Kriegsman’s compensation as President
and Chief Executive Officer, see the Summary
Compensation Table above.
The amounts in this column represent cash payments
made to Non-Employee Directors for attendance at
meetings during the year.
In July 2007, we granted stock options to purchase
25,000 shares of our common stock at an exercise price
equal to the current market value of our common stock
to each non-employee director, which had a grant date
fair value of $2.80 calculated in accordance with SFAS
123(R). Pursuant to SEC rules, the amounts shown
exclude the impact of estimated forfeitures related to
service-based vesting conditions. The amount
recognized for these awards was calculated using the
Black Scholes option-pricing model, and reflect grants
from our 2000 Long-Term Incentive Plan, which is
described in Note 12 of the Notes to Consolidated
Financial Statements.
We use a combination of cash and stock-based compensation to attract and retain qualified candidates to serve on our board of
directors. Directors who also are employees of our company currently receive no compensation for their service as directors or as
members of board committees. In setting director compensation, we consider the significant amount of time that directors dedicate to
the fulfillment of their director responsibilities, as well as the competency and skills required of members of our board. The directors’
current compensation schedule has been in place since May 2007. The directors’ annual compensation year begins with the annual
election of directors at the annual meeting of stockholders. The annual retainer year period has been in place for directors since 2003.
Periodically, our board of directors reviews our director compensation policies and, from time to time, makes changes to such policies
based on various criteria the board deems relevant.
Our non-employee directors receive a quarterly retainer of $3,000 ($9,500 for the Chairman of the Board and $8,000 for the
Chairman of the Audit Committee), a fee of $3,000 for each board meeting attended ($2,000 for meetings attended by teleconference
and $750 for board actions taken by unanimous written consent), $2,000 for each meeting of the audit committee attended, and $1,000
for each other committee meeting attended. Non-employee directors who serve as the chairman of a board committee receive an
additional $2,000 for each meeting of the nomination and governance committee or the compensation committee attended and an
additional $2,500 for each meeting attended of the audit committee. In July 2007, we granted stock options to purchase 25,000 shares
of our common stock at an exercise price equal to the current market value of our common stock to each non-employee director. The
options were vested, in full, upon grant.
56
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS
Based solely upon information made available to us, the following table sets forth information with respect to the beneficial
ownership of our common stock as of March 20, 2008 by (1) each person who is known by us to beneficially own more than five
percent of our common stock; (2) each of our directors; (3) the named executive officers listed in the Summary Compensation Table
under Item 11; and (4) all of our executive officers and directors as a group. Beneficial ownership is determined in accordance with
the SEC rules. Shares of common stock subject to any warrants or options that are presently exercisable, or exercisable within 60 days
of March 20, 2008 (which are indicated by footnote) are deemed outstanding for the purpose of computing the percentage ownership
of the person holding the warrants or options, but are not treated as outstanding for the purpose of computing the percentage
ownership of any other person. The percentage ownership reflected in the table is based on 90,743,553 shares of our common stock
outstanding as of March 20, 2008. Except as otherwise indicated, the holders listed below have sole voting and investment power with
respect to all shares of common stock shown, subject to applicable community property laws. An asterisk represents beneficial
ownership of less than 1%.
Shares of
Common Stock
Number
538,916
5,575,274
159,519
97,000
442,451
90,000
33,336
404,161
50,004
403,614
7,794,275
Percent
*
6.0%
*
*
*
*
*
*
*
*
8.3%
Includes 447,000 shares subject to options or warrants.
Includes 1,554,174 shares subject to options or
warrants. Mr. Kriegsman’s address is c/o CytRx
Corporation, 11726 San Vicente Boulevard, Suite 650,
Los Angeles, CA 90049.
Includes 104,543 shares subject to options or warrants.
Includes 97,000 shares subject to options or warrants.
The shares shown are owned, of record, by the Selter
Family Trust or Selter IRA Rollover. Includes 85,000
shares subject to options or warrants owned by
Mr. Selter.
Includes 85,000 shares subject to options or warrants.
Includes 33,336 shares subject to options or warrants.
Includes 404,161 shares subject to options or warrants.
Includes 50,004 shares subject to options or warrants.
Includes 403,614 shares subject to options or warrants.
Includes 3,263,832 shares subject to options or
warrants.
57
Name of Beneficial Owner
Louis Ignarro, Ph.D.(1)
Steven A. Kriegsman(2)
Max Link(3)
Joseph Rubinfeld(4)
Marvin R. Selter(5)
Richard L. Wennekamp(6)
Mitchell K. Fogelman(7)
Jack R. Barber(8)
Shi Chung Ng (9)
Benjamin S. Levin(10)
All executive officers and directors as a group (ten persons)(11)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Director Independence
Our board of directors has determined that Messrs. Link, Rubinfeld, Selter, Ignarro and Wennekamp are “independent” under the
current independence standards of both The NASDAQ Capital Market and the SEC, and have no material relationships with us (either
directly or as a partner, shareholder or officer of any entity) which could be inconsistent with a finding of their independence as
members of our board of directors or as the members of our Audit Committee. In making these determinations, our board of directors
has broadly considered all relevant facts and circumstances, recognizing that material relationships can include commercial, banking,
consulting, legal, accounting, and familial relationships, among others.
Transactions with Related Persons
General
Our Audit Committee is responsible for reviewing and approving, as appropriate, all transactions with related persons, in
accordance with its Charter and NASDAQ Marketplace Rules. We had no transactions with related persons in 2007, and there are no
transactions currently proposed for 2008.
Transactions between us and one or more related persons may present risks or conflicts of interest or the appearance of conflicts of
interest. Our Code of Ethics requires all employees, officers and directors to avoid activities or relationships that conflict, or may be
perceived to conflict, with our interests or adversely affect our reputation. It is understood, however, that certain relationships or
transactions may arise that would be deemed acceptable and appropriate so long as there is full disclosure of the interest of the related
parties in the transaction and review and approval by disinterested directors to ensure there is a legitimate business reason for the
transaction and that the transaction is fair to us and our stockholders.
As a result, the procedures followed by the Audit Committee to evaluate transactions with related persons require:
•
•
that all related person transactions, all material terms of the transactions, and all the material facts as to the related person’s
direct or indirect interest in, or relationship to, the related person transaction must be communicated to the Audit Committee;
and
that all related person transactions, and any material amendment or modification to any related person transaction, be
reviewed and approved or ratified by the Audit Committee, as required by NASDAQ Marketplace Rules.
Our Audit Committee will evaluate related person transactions based on:
•
•
•
•
information provided by members of our board of directors in connection with the required annual evaluation of director
independence;
pertinent responses to the Directors’ and Officers’ Questionnaires submitted periodically by our officers and directors and
provided to the Audit Committee by our management;
background information on nominees for director provided by the Nominating and Corporate Governance Committee of our
board of directors; and
any other relevant information provided by any of our directors or officers.
In connection with its review and approval or ratification, if appropriate, of any related person transaction, our Audit Committee is
to consider whether the transaction will compromise standards included in our Code of Ethics. In the case of any related person
transaction involving an outside director or nominee for director, the Audit Committee also is to consider whether the transaction will
compromise the director’s status as an independent director as prescribed in the NASDAQ Marketplace Rules.
All of our related person transactions will be disclosed in our filings with the SEC in accordance with SEC rules.
58
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Exemption Clause
Item 404(a)(7)(a) of Securities and Exchange Commission Regulation S-K states that: Disclosure need not be provided if the
transaction is one where the rates or charges involved in the transaction are determined by competitive bid, or the transaction involves
rendering of services as a common or contract carrier, or public utility, at rates or charges fixed in conformity with law or
governmental authority.
Applicable Definitions
For purposes of our Audit Committee’s review:
•
•
“related person” has the meaning given to such term in Item 404(a) of Securities and Exchange Commission Regulation S-K
(“Item 404(a)”); and
“related person transaction” means any transaction for which disclosure is required under the terms of Item 404(a) involving
the Company and any related persons.
Item 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
BDO Seidman, LLP, or BDO, serves as our independent registered public accounting firm and audited our financial statements for
the years ended December 31, 2007, 2006 and 2005.
Audit Fees
The fees for 2007 and 2006 billed to us by BDO for professional services rendered for the audit of our annual consolidated
financial statements and internal controls over financial reporting and for the 2006 audit of management’s assessment of internal
controls over financial reporting were $656,000 and $815,000, respectively. In 2005, the fees for the audit of our annual financial
statements were $170,000.
Audit Related Fees
BDO rendered $804,000 of other audit-related services related to the RXi registration statement in 2007 and $113,000 of
audit-related services in 2006. There were no other audit-related services for 2005.
Tax Fees
The aggregate fees billed by BDO for professional services for tax compliance, tax advice and tax planning were $43,000 for 2007
and $25,000 for 2006. We did not engage BDO to perform any tax-related services for 2005.
All Other Fees
No other services were rendered by BDO for 2007, 2006 or 2005.
Pre-Approval Policies and Procedures
It is the policy of our Audit Committee that all services to be provided by our independent registered public accounting firm,
including audit services and permitted audit-related and non-audit services, must be pre-approved by our Audit Committee. Our Audit
Committee pre-approved all services, audit and non-audit, provided to us by BDO for 2007 and 2006.
59
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following documents are filed as part of this 10-K:
(1) Financial Statements
PART IV
Our consolidated financial statements and the related report of the independent registered public accounting firm thereon are set
forth on pages F-1 to F-25 of this Annual Report. These consolidated financial statements are as follows:
Consolidated Balance Sheets as of December 31, 2007 and 2006
Consolidated Statements of Operations for the Years Ended December 31, 2007, 2006 and 2005
Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2007, 2006 and 2005
Consolidated Statements of Cash Flows for the Years Ended December 31, 2007, 2006 and 2005
Notes to Consolidated Financial Statements
Reports of Independent Registered Public Accounting Firms
(2) Financial Statement Schedules
The following financial statement schedule is set forth on page F-25 of this Annual Report.
Schedule II — Valuation and Qualifying Accounts for the years ended December 31, 2007, 2006 and 2005
All other schedules are omitted because they are not required, not applicable, or the information is provided in the financial
statements or notes thereto.
(b) Exhibits
See Exhibit Index on page 61 of this Annual Report, which is incorporated herein by reference.
60
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
CytRx Corporation
Form 10-K Exhibit Index
Exhibit
Number
3.1
Description
Footnote
Amended and Restated Certificate of Incorporation, as amended
3.2
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
10.1*
10.2*
10.3*
10.4*
Restated By-Laws, as amended
Shareholder Protection Rights Agreement dated April 16, 1997 between CytRx Corporation and American
Stock Transfer &Trust Company as Rights Agent
Amendment No. 1 to Shareholder Protection Rights Agreement
Amendment No. 2 to Shareholder Protection Rights Agreement
Form of Common Stock Purchase Warrant between CytRx Corporation and each of the investors in the
May 29, 2003 private placement
Form of Common Stock Purchase Warrant between CytRx Corporation and each of the investors in the
September 16, 2003 private placement
Warrant issued on May 10, 2004 to MBN Consulting, LLC
Form of Common Stock Purchase Warrant between CytRx Corporation and each of the investors in the
October 4, 2004 private placement
Form of Common Stock Purchase Warrant between CytRx Corporation and each of the investors in the
January 2005 private placement
Form of Common Stock Purchase Warrant between CytRx Corporation and each of the investors in the
March 2006 private placement
1994 Stock Option Plan, as amended and restated
1995 Stock Option Plan
1998 Long-Term Incentive Plan
2000 Long-Term Incentive Plan
10.5*
Amendment No. 1 to 2000 Long-Term Incentive Plan
10.6*
Amendment No. 2 to 2000 Long-Term Incentive Plan
10.7*
Amendment No. 3 to 2000 Long-Term Incentive Plan
10.8*
Amendment No. 4 to 2000 Long-Term Incentive Plan
10.9†
License Agreement dated December 7, 2001 by and between CytRx Corporation and Vical Incorporated
10.10†
Agreement between CytRx Corporation and Dr. Robert Hunter regarding SynthRx, Inc dated October 20,
2003
10.11
Office Lease between The Kriegsman Group and Douglas Emmett, dated April 13, 2000
10.12
10.13
Assignment to CytRx Corporation effective July 1, 2003 of Office Lease between The Kriegsman Group and
Douglas Emmett, dated April 13, 2000
Asset Sale and Purchase Agreement dated October 4, 2004, by and among CytRx Corporation, Biorex
Research & Development, RT and BRX Research and Development Company Ltd
10.14*
Amended and Restated Employment Agreement dated May 17, 2005 between CytRx Corporation and Steven
A. Kriegsman
Source: CYTRX CORP, 10-K, April 01, 2008
(a)
(e)
(s)
(i)
(j)
(k)
(l)
(m)
(p)
(b)
(r)
(d)
(e)
(g)
(g)
(j)
(j)
(f)
(j)
(j)
(j)
(l)
(n)
10.15
10.16*
10.17*
First Amendment to Office Lease dated October 14, 2005, by and between CytRx Corporation and Douglas
Emmett 1993, LLC
Second Amended and Restated Employment Agreement dated June 16, 2006 between CytRx Corporation
and Dr. Jack Barber
Second Amended and Restated Employment Agreement dated June 16, 2006 between CytRx Corporation
and Benjamin S. Levin
61
(o)
(q)
(q)
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Exhibit
Number
10.18
10.19
10.20
10.21
10.22
10.23
10.24
10.25
Description
Royalty Agreement dated August 28, 2006 between CytRx Corporation and Kenneth Council, as Trustee of
the ALS Charitable Remainder Trust
Contribution Agreement, dated as of January 8, 2007, between CytRx Corporation and RXi Pharmaceuticals
Corporation
Reimbursement Agreement, dated January 8, 2007, between CytRx Corporation and RXi Pharmaceuticals
Corporation
Voting agreement, dated as of January 10, 2007, between CytRx Corporation and the University of
Massachusetts
Master Agreement for Clinical Trials Management Services, dated February 5, 2007, between CytRx
Corporation and Pharmaceutical Research Associates
Stockholders agreement, dated February 23, 2007, among CytRx Corporation, RXi Pharmaceuticals
Corporation, Craig C. Mello, Ph.D., Tariq Rana, Ph.D., Gregory J. Hannon, Ph.D., and Michael P. Czech,
Ph.D
Form of Purchase Agreement, dated as of April 17, 2007, by and between CytRx Corporation and each of the
selling stockholders named therein
Contribution Agreement, dated as of April 30, 2007, between CytRx Corporation and RXi Pharmaceuticals
Corporation
10.26*
Employment Agreement dated April 30, 2007, between CytRx Corporation and Shi Chung Ng
10.27*
Lease dated July 20, 2007, between CytRx Corporation and BMR-3030 Bunker Hill Street LLC
10.28*
Employment Agreement dated September 11, 2007, between CytRx Corporation and Mitchell K. Fogelman
10.29*
Employment Letter dated October 26, 2007, between CytRx Corporation and John Y. Caloz
Footnote
(r)
(t)
(t)
(t)
(t)
(t)
(u)
(t)
(v)
(v)
(w)
(w)
21.1
Subsidiaries
23.1
Consent of BDO Seidman, LLP
31.1
31.2
32.1
32.2
*
†
(a)
(b)
Certification of Chief Executive Officer Pursuant to 15 U.S.C. Section 7241, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
Certification of Chief Financial Officer Pursuant to 15 U.S.C. Section 7241, as adopted pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
Indicates a management contract or compensatory plan
or arrangement.
Confidential treatment has been requested or granted for
certain portions which have been blanked out in the
copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has
been filed separately with the Securities and Exchange
Commission.
Incorporated by reference to the Registrant’s Current
Report on Form 8-K filed on April 17, 1997
Incorporated by reference to the Registrant’s Quarterly
Report on Form 10-Q filed on November 13, 1997
Source: CYTRX CORP, 10-K, April 01, 2008
(c)
(d)
Incorporated by reference to the Registrant’s
Registration Statement on Form S-8 (File No.
33-93818) filed on June 22, 1995
Incorporated by reference to the Registrant’s Proxy
Statement filed on April 30, 1998
62
Source: CYTRX CORP, 10-K, April 01, 2008
Incorporated by reference to the Registrant’s Annual
Report on Form 10-K filed on March 27, 2001
Incorporated by reference to the Registrant’s Current
Report on Form 8-K filed on December 21, 2001
Incorporated by reference to the Registrant’s Proxy
Statement filed June 10, 2002
Incorporated by reference to the Registrant’s 10-Q filed
on May 15, 2003
Incorporated by reference to the Registrant’s 8-K filed
on May 30, 2003
Incorporated by reference to the Registrant’s 10-K filed
on May 14, 2004
Incorporated by reference to the Registrant’s 10-Q filed
on August 16, 2004
Incorporated by reference to the Registrant’s 8-K filed
on October 5, 2004
Incorporated by reference to the Registrant’s 8-K filed
on January 21, 2005
Incorporated by reference to the Registrant’s 10-Q filed
on August 15, 2005
Incorporated by reference to the Registrant’s 8-K filed
on October 20, 2005
Incorporated by reference to the Registrant’s 8-K filed
on March 3, 2006
Incorporated by reference to the Registrant’s 10-Q filed
on August 3, 2006
Incorporated by reference to the Registrant’s 10-Q filed
on November 13, 2006
Incorporated by reference to the Registrant’s 10-K filed
on April 2, 2007
Incorporated by reference to the Registrant’s 10-Q filed
on May 10, 2007
Incorporated by reference to the Registrant’s Current
Report on Form 8-K filed on April 18, 2007
Incorporated by reference to the Registrant’s 10-Q filed
on August 9, 2007
Incorporated by reference to the Registrant’s 10-Q filed
on November 14, 2007
63
Table of Contents
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: April 1, 2008
CYTRX CORPORATION
SIGNATURES
By: /s/ STEVEN A. KRIEGSMAN
Steven A. Kriegsman
President and Chief Executive Officer
64
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
INDEX TO FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULE
CytRx Corporation
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Stockholders’ Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Reports of Independent Registered Public Accounting Firm
Financial Statement Schedule Schedule II — Valuation and Qualifying Accounts
F-1
F-2
F-3
F-4
F-5
F-6
F-22
F-25
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
CYTRX CORPORATION
CONSOLIDATED BALANCE SHEETS
ASSETS
Current assets:
Cash and cash equivalents
Short-term investments, at amortized cost
Accounts receivable
Prepaid expenses and other current assets
Total current assets
Equipment and furnishings, net
Molecular library, net
Goodwill
Other assets
Total assets
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable
Accrued expenses and other current liabilities
Deferred revenue, current portion
Total current liabilities
Deferred revenue, non-current portion
Total liabilities
Minority interest
Commitment and contingencies
Stockholders’ equity:
Preferred Stock, $.01 par value, 5,000,000 shares authorized, including 5,000 shares
of Series A Junior Participating Preferred Stock; no shares issued and outstanding
Common stock, $.001 par value, 150,000,000 shares authorized; 90,397,867 and
70,788,586 shares issued and outstanding at December 31, 2007 and 2006,
respectively
Additional paid-in capital
Treasury stock, at cost (633,816 shares held, at December 31, 2007 and 2006,
respectively)
Accumulated deficit
Total stockholders’ equity
Total liabilities and stockholders’ equity
December 31,
2007
2006
$
$
$
50,498,261
9,951,548
101,217
930,596
61,481,622
1,573,290
193,946
183,780
713,398
64,146,036
1,946,215
3,700,866
8,399,167
14,046,248
7,167,381
21,213,629
2,708,368
$
$
$
30,381,393
—
105,930
233,323
30,720,646
252,719
283,460
183,780
195,835
31,636,440
955,156
2,722,478
6,733,350
10,410,984
16,075,117
26,486,101
—
—
—
90,398
203,905,691
70,789
146,961,657
(2,279,238)
(161,492,812)
40,224,039
64,146,036
$
(2,279,238)
(139,602,869)
5,150,339
31,636,440
$
The accompanying notes are an integral part of these consolidated financial statements.
F-2
Source: CYTRX CORP, 10-K, April 01, 2008
CYTRX CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
Table of Contents
Revenue:
Service revenue
Licensing revenue
Grant revenue
Expenses:
Research and development (includes an aggregate of 462,112
shares of RXi common stock valued at $2,310,560 issued in
exchange for licensing rights in the second quarter of 2007)
General and administrative
Depreciation and amortization
Loss before other income
Other income:
Interest and dividend income
Gain on lease termination
Other income (expense), net
Minority interest in losses of subsidiary
Net loss before provision for income taxes
Provision for income taxes
Net loss
Deemed dividend for anti-dilution adjustments made to outstanding
common stock warrants
Net loss applicable to common stockholders
Basic and diluted loss per share
Basic and diluted weighted average shares outstanding
2007
Years Ended December 31,
2006
2005
$
7,241,920
101,000
116,118
7,459,038
$
1,858,772
101,000
105,930
2,065,702
$
82,860
101,500
—
184,360
18,823,802
14,822,142
272,229
33,918,173
(26,459,135)
2,663,542
—
1,496,979
(22,298,614)
448,671
(21,849,943)
(40,000)
(21,889,943)
9,781,007
9,657,257
227,704
19,665,968
(17,600,266)
996,647
—
(3,205)
(16,606,824)
—
(16,606,824)
(145,000)
(16,751,824)
9,087,270
6,424,106
217,095
15,728,471
(15,544,111)
206,195
163,604
—
(15,174,312)
81,452
(15,092,860)
—
(15,092,860)
—
$ (21,889,943)
(0.26)
$
(488,429)
$ (17,240,253)
(0.25)
$
84,006,728
68,105,626
(1,075,568)
$ (16,168,428)
(0.28)
$
56,852,402
The accompanying notes are an integral part of these consolidated financial statements.
F-3
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
Balance at
December 31, 2004
Common stock and
warrants issued in
connection with
private placements
Issuance of stock
options/warrants:
For services and
licenses
For minority
interest
Options and warrants
exercised
Deemed dividend
Net loss
Balance at
December 31, 2005
Common stock and
warrants issued in
connection with
private placements
Issuance of stock
options/warrants
for services and
licenses
Options and warrants
exercised
Deemed dividend
Net loss
Balance at
December 31, 2006
Common stock and
warrants issued in
connection with
private placements
Issuance of stock
options/warrants
for services and
licenses
Options and warrants
exercised
Issuance of stock
options by
subsidiary
Net loss
Balance at
CYTRX CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
Common Stock
Shares Issued
Amount
Additional
Paid-In
Capital
Accumulated
Deficit
Treasury
Stock
Total
40,189,688
$ 40,190 $
110,028,327 $
(106,194,187) $
(2,279,238) $
1,595,092
18,084,494
18,084
19,572,362
—
—
19,590,446
—
—
1,009,778
—
—
—
—
1,010
—
—
586,471
273,000
—
—
255,203
1,075,569
—
—
(1,075,569)
(15,092,860)
—
586,471
—
273,000
—
—
—
256,213
—
(15,092,860)
59,283,960
59,284
131,790,932
(122,362,616)
(2,279,238)
7,208,362
10,650,795
10,651
12,393,709
—
—
12,404,360
149,928
703,903
—
—
150
1,930,098
—
—
1,930,248
704
—
—
358,489
488,429
—
—
(488,429)
(16,751,824)
—
—
—
359,193
—
(16,751,824)
70,788,586
70,789
146,961,657
(139,602,869)
(2,279,238)
5,150,339
8,615,000
8,615
34,239,442
—
—
34,248,057
10,994,281
10,994
18,778,180
2,402,035
—
—
—
2,402,035
—
18,789,174
—
—
—
—
1,524,377
—
—
(21,889,943)
—
—
1,524,377
(21,889,943)
December 31, 2007
90,397,867
$ 90,398 $
203,905,691 $
(161,492,812) $
(2,279,238) $ 40,224,039
The accompanying notes are an integral part of these consolidated financial statements.
F-4
Source: CYTRX CORP, 10-K, April 01, 2008
2007
Years Ended December 31,
2006
2005
$ (21,889,943)
$ (16,751,824)
$ (15,092,860)
Table of Contents
CYTRX CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
Cash flows from operating activities:
Net loss
Adjustments to reconcile net loss to net cash provided by (used
in) operating activities:
Depreciation and amortization
Non-cash earned on short-term investments
Loss on retirement of equipment
Minority interest in losses of subsidiary
Gain on lease termination
Stock option and warrant expense
Common stock issued for services
Non-cash stock compensation related to research and
development
Changes in assets and liabilities:
Accounts receivable
Prepaid expenses and other current assets
Accounts payable
Deferred revenue
Accrued expenses and other current liabilities
Total adjustments
Net cash provided by (used in) operating activities
Cash flows from investing activities:
Purchases of short-term investments
Redemption of short-term investments
Purchases of equipment and furnishings
Net cash provided by (used in) investing activities
Cash flows from financing activities:
Net proceeds from exercise of stock options and warrants
Net proceeds from issuances of common stock
Capital contributions from minority interest
Net cash provided by financing activities
Net increase in cash and cash equivalents
Cash and cash equivalents at beginning of year
Cash and cash equivalents at end of year
272,229
(172,055)
—
(448,671)
—
3,511,541
3,089,639
227,704
—
2,864
—
—
1,284,032
262,500
—
411,530
4,713
(1,214,836)
757,086
(7,241,919)
978,388
(463,885)
(22,353,828)
(9,779,493)
—
(1,269,313)
(11,048,806)
66,930
100,295
139,530
22,533,467
1,082,557
26,111,409
9,359,585
—
—
(41,133)
(41,133)
18,789,173
34,248,058
482,271
53,519,502
359,191
12,404,360
—
12,763,551
20,116,868
30,381,393
$ 50,498,261
22,082,003
8,299,390
$ 30,381,393
Supplemental disclosure of cash flow information:
Cash received during the years for interest received
Cash paid during the years for income taxes
Supplemental disclosures of non-cash investing activities:
Fair market value of options and warrants provided for goods and
services
Fair market value of common stock exchanged for minority
interest in subsidiary
Acquisition of property and equipment through accrued liabilities
$
$
$
$
$
2,491,487
183,461
—
—
233,974
$
$
$
$
$
996,647
—
705,794
—
—
Non-cash financing activities:
During 2007, the Company allocated $289,254 of additional paid in capital arising from subsidiary common stock options issued to
minority interest.
In connection with the Company’s adjustments to terms of certain outstanding warrants on January 20, 2005 and March 2, 2006, the
Company recorded deemed dividends of $1,075,568 and $488,429, respectively, which were recorded as charges to retained earnings
with corresponding credits to additional paid-in capital.
Source: CYTRX CORP, 10-K, April 01, 2008
217,095
—
—
(81,452)
(163,604)
366,753
—
219,718
(172,860)
596,935
(845,477)
—
456,637
593,745
(14,499,115)
—
1,011,814
(47,563)
964,251
256,213
19,590,446
—
19,846,659
6,311,795
1,987,595
8,299,390
206,195
—
586,471
273,000
—
$
$
$
$
$
$
The accompanying notes are an integral part of these consolidated financial statements.
F-5
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
1. Nature of Business
CYTRX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
CytRx Corporation (“CytRx” or the “Company”) is clinical-stage biopharmaceutical company engaged in developing human
therapeutic products based primarily upon our small-molecule molecular chaperone amplification technology. Molecular chaperone
proteins occur normally in human cells and are key components of the body’s defenses against potentially toxic mis-folded cellular
proteins. Since damaged toxic proteins called aggregates are thought to play a role in many diseases, the Company believes that
amplification of molecular chaperone proteins could have therapeutic efficacy for a broad range of indications. Currently, the
Company is using its chaperone amplification technology to develop treatments for neurodegenerative disorders and diabetic
complications. CytRx currently owns approximately 49% of RXi Pharmaceuticals Corporation, or RXi, which was founded in
April 2006 by the Company and four researchers in the field of RNAi, including Dr. Craig Mello, recipient of the 2006 Nobel Prize
for Medicine for his co-discovery of RNAi. At December 31, 2007, CytRx owned approximately 85% of RXi, and on March 11, 2007,
CytRx paid approximately 36% of its shares of RXi common stock as a dividend to CytRx stockholders. RNAi is a naturally occurring
mechanism for the regulation of gene expression that has the potential to selectively inhibit the activity of any human gene. RXi is
focused solely on developing and commercializing therapeutic products based upon RNAi technologies for the treatment of human
diseases, including neurodegenerative diseases, cancer, type 2 diabetes and obesity.
At December 31, 2007, the Company had cash, cash equivalents and short-term investments of $60.4 million, including
$11.7 million held by RXi. Management believes that CytRx’s current resources will be sufficient to support its currently planned
level of operations into the second half of 2009. This estimate is based, in part, upon the Company’s currently projected expenditures
for 2008 of approximately $29.2 million, including approximately $5.1 million for its clinical program for arimoclomol for ALS and
related studies, approximately $6.4 million for its planned Phase II clinical trial of arimoclomol in stroke patients and Phase II clinical
trial of iroxanadine for diabetic ulcers, approximately $9.2 million for equipping and operating its research laboratory in San Diego,
California, and approximately $8.5 million for other general and administrative expenses. Management believes that RXi’s current
resources will be sufficient to support its currently planned level of operations into the second quarter of 2009. Projected expenditures
for CytRx and RXi are based upon numerous assumptions and subject to many uncertainties, and the Company’s actual expenditures
may be significantly different from these projections. The Company will be required to obtain additional funding in order to execute
its long-term business plans, although it does not currently have commitments from any third parties to provide it with capital. The
Company cannot assure that additional funding will be available on favorable terms, or at all. If the Company fails to obtain additional
funding when needed, it may not be able to execute its business plans and its business may suffer, which would have a material
adverse effect on its financial position, results of operations and cash flows.
2. Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation — The consolidated financial statements include the accounts of CytRx
together with those of its wholly-owned and majority-owned subsidiaries. The accounts of CytRx Laboratories, less the minority
interest, are included through June 30, 2005, when the Company purchased the outstanding 5% interest in CytRx Laboratories (see
Note 11) and CytRx Laboratories became wholly owned by the Company. RXi began its operations in 2007, and had no operations
during 2006.
Revenue Recognition — Biopharmaceutical revenues consist of license fees from strategic alliances with pharmaceutical
companies as well as service and grant revenues. Service revenues consist of contract research and laboratory consulting. Grant
revenues consist of government and private grants.
Monies received for license fees are deferred and recognized ratably over the performance period in accordance with Staff
Accounting Bulletin (“SAB”) No. 104, Revenue Recognition. Milestone payments will be recognized upon achievement of the
milestone as long as the milestone is deemed substantive and we have no other performance obligations related to the milestone and
collectability is reasonably assured, which is generally upon receipt, or recognized upon termination of the agreement and all related
obligations. Deferred revenue represents amounts received prior to revenue recognition.
Revenues from contract research, government grants, and consulting fees are recognized over the respective contract periods as the
services are performed, provided there is persuasive evidence or an arrangement, the fee is fixed or determinable and collection of the
F-6
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
related receivable is reasonably assured. Once all conditions of the grant are met and no contingencies remain outstanding, the revenue
is recognized as grant fee revenue and an earned but unbilled revenue receivable is recorded.
In August 2006, the Company received approximately $24.3 million in proceeds from the privately-funded ALS Charitable
Remainder Trust (“ALSCRT”) in exchange for the commitment to continue research and development of arimoclomol and other
potential treatments for ALS and a one percent royalty in the worldwide sales of arimoclomol. Under the arrangement, the Company
retains the rights to any products or intellectual property funded by the arrangement and the proceeds of the transaction are
non-refundable. Further, the ALSCRT has no obligation to provide any further funding to the Company. The Company has concluded
that due to the research and development components of the transaction that it is properly accounted for under Statement of Financial
Accounting Standards No. 68, Research and Development Arrangements. Accordingly, the Company has recorded the value received
under the arrangement as deferred service revenue and will recognize service revenue using the proportional performance method of
revenue recognition, meaning that service revenue is recognized on a dollar-for-dollar basis for each dollar of expense incurred for the
research and development of arimoclomol and other potential ALS treatments. The Company believes that this method best
approximates the efforts expended related to the services provided. The Company adjusts its estimates of expense incurred for this
research and development on a quarterly basis. For the years ended December 31, 2007 and 2006, the Company recognized
approximately $7.2 and $1.8 million, respectively, of service revenue related to this transaction. Any significant change in ALS
related research and development expense in any particular quarterly or annual period will result in a change in the recognition of
revenue for that period and consequently affect the comparability or revenue from period to period.
The amount of “deferred revenue, current portion” is the amount of deferred revenue that is expected to be recognized in the next
twelve months and is subject to fluctuation based upon management’s estimates. Management’s estimates include an evaluation of
what pre-clinical and clinical trials are necessary, the timing of when trials will be performed and the estimated clinical trial expenses.
These estimates are subject to changes and could have a significant effect on the amount and timing of when the deferred revenues are
recognized.
Other Income — In June 2007, the Company recognized $1.5 million of income arising from a fee received pursuant to a
change-in-control provision included in the purchase agreement for its 1998 sale of its animal pharmaceutical unit. Management
concluded that the fee did not represent revenue generated from the Company’s normal course of its business, and accordingly the
Company recorded this fee as other income.
Cash Equivalents — The Company considers all highly liquid debt instruments with an original maturity of 90 days or less to be
cash equivalents. Cash equivalents consist primarily of amounts invested in money market accounts.
Fair Value of Financial Instruments — The carrying amounts reported in the balance sheet for cash and cash equivalents
approximate their fair values.
Short-term Investments — RXi has purchased zero coupon U.S Treasury Bills at a discount. These securities mature within the next
twelve months. They are classified as held-to-maturity and under Statement of Financial Accounting Standards No. 115, Investments
in Debt Securities, are measure at amortized cost since RXi has the intent and ability to hold these securities to maturity. The interest
income has been amortized at the effective interest rate.
Equipment and Furnishings — Equipment and Furnishings are stated at cost and depreciated using the straight-line method based
on the estimated useful lives (generally three to five years for equipment and furniture) of the related assets. Whenever there is a
triggering event that might suggest an impairment, management evaluates the realizability of recorded long-lived assets to determine
whether their carrying values have been impaired. The Company records impairment losses on long-lived assets used in operations
when events and circumstances indicate that the assets might be impaired and the non-discounted cash flows estimated to be generated
by those assets are less than the carrying amount of those assets. Any impairment loss is measured by comparing the fair value of the
asset to its carrying amount.
Molecular Library—The Molecular Library, a collection of chemical compounds that the Company believes may be developed
into drug candidates, are stated at cost and depreciated over five years; the estimated useful life of the molecular library, which is less
than the remaining life of the related patents. The molecular library is presently used as a tool in the Company’s drug discovery
program. On an annual basis, or whenever there is a triggering event that might suggest an impairment, management evaluates the
realizability of the molecular library to determine whether its carrying value has been impaired. The Company records impairment
losses on long-lived assets used in operations when events and circumstances indicate that the assets might be impaired and the
non-discounted cash flows estimated to be generated by those assets are less than the carrying amount of those assets. Any impairment
loss is measured by comparing the fair value of the asset to its carrying amount.
Impairment of Long-Lived Assets — The Company reviews long-lived assets, including finite lived intangible assets, for
impairment on an annual basis, as of December 31, or on an interim basis if an event occurs that might reduce the fair value of such
assets below their carrying values. An impairment loss would be recognized based on the difference between the carrying value of the
F-7
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
asset and its estimated fair value, which would be determined based on either discounted future cash flows or other appropriate fair
value methods.
Patents and Patent Application Costs — Although the Company believes that its patents and underlying technology have
continuing value, the amount of future benefits to be derived from the patents is uncertain. Patent costs are therefore expensed as
incurred.
Basic and Diluted Loss per Common Share — Basic and diluted loss per common share are computed based on the weighted
average number of common shares outstanding. Common share equivalents (which consist of options and warrants) are excluded from
the computation of diluted loss per share since the effect would be antidilutive. Common share equivalents which could potentially
dilute basic earnings per share in the future, and which were excluded from the computation of diluted loss per share, totaled
approximately 17.1 million shares, 30.2 million shares and 24.7 million shares at December 31, 2007, 2006 and 2005, respectively. In
connection with the Company’s adjustment to the exercise terms of certain outstanding warrants to purchase common stock on
March 2, 2006 and January 20, 2005, the Company recorded deemed dividends of $488,000 and $1.1 million, respectively. These
deemed dividends are reflected as an adjustment to net loss for the first quarter of 2006 and the year ended 2005 to arrive at net loss
applicable to common stockholders on the consolidated statement of operations and for purposes of calculating basic and diluted
earnings per shares.
Shares Reserved for Future Issuance — As of December 31, 2007, the Company has reserved approximately 2.2 million of its
authorized but unissued shares of common stock for future issuance pursuant to its employee stock option plans issued to consultants
and investors.
Stock-based Compensation — Prior to January 1, 2006, the Company accounted for its stock based compensation plans under the
recognition and measurement provisions of Accounting Principles Board No. 25, Accounting for Stock Issued to Employees (“APB
25”), and related interpretations for all awards granted to employees. Under APB 25, when the exercise price of options granted to
employees under these plans equals the market price of the common stock on the date of grant, no compensation expense is recorded.
When the exercise price of options granted to employees under these plans is less than the market price of the common stock on the
date of grant, compensation expense is recognized over the vesting period.
The Company’s share-based employee compensation plans are described in Note 12. On January 1, 2006, the Company adopted
SFAS 123(R), “Accounting for Stock-based Compensation (Revised 2004)” (“123(R)”), which requires the measurement and
recognition of compensation expense for all share-based payment awards made to employees, non-employee directors, and
consultants, including employee stock options. SFAS 123(R) supersedes the Company’s previous accounting under APB 25 and SFAS
123, for periods beginning in fiscal 2006. In March 2005, the Securities and Exchange Commission issued SAB 107 relating to SFAS
123(R). The Company has applied the provisions of SAB 107 in its adoption of SFAS 123(R).
The Company adopted SFAS 123(R) using the modified prospective transition method, which requires the application of the
accounting standard as of January 1, 2006, the first day of the Company’s fiscal year 2006. The following table illustrates the pro
forma effect on net loss and net loss per share assuming the Company had applied the fair value recognition provisions of SFAS 123
to options granted under the Company’s stock option plans for the year ending December 31, 2005. For purposes of this presentation,
the value of the options is estimated using a Black Scholes option-pricing model and recognized as an expense on a straight-line basis
over the options’ vesting periods. Numbers presented are in thousands with the exception of per share data.
Net loss applicable to common stockholders
Total stock-based employee compensation expense determined under fair-value based method for all awards
Pro forma net loss
Loss per share, as reported (basic and diluted)
Loss per share, pro forma (basic and diluted)
Year Ended
December 31, 2005
(16,168)
$
(1,388)
(17,556)
(0.28)
(0.31)
$
$
$
The Company’s Statement of Operations as of and for the years ended December 31, 2006 and 2007 reflects the impact of SFAS
123(R). In accordance with the modified prospective transition method, the Company’s Statements of Operations for prior periods
have not been restated to reflect, and do not include, the impact of SFAS 123(R). Share-based compensation expense recognized under
SFAS 123(R) for the years ended December 31, 2007 and 2006 was $2.7 million and $1.2 million, respectively. As of December 31,
2007, there was $3.4 million of unrecognized compensation cost related to unvested employee stock options that is expected to be
F-8
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
recognized as a component of the Company’s operating expenses through 2009. Compensation costs will be adjusted for future
changes in estimated forfeitures.
For stock options paid in consideration of services rendered by non-employees, the Company recognizes compensation expense in
accordance with the requirements of SFAS No. 123(R) and EITF 96-18, as amended, and Emerging Issues Task Force Issue
No. 96-18, “Accounting for Equity Instruments that are Issued to Other Than Employees for Acquiring, or in Conjunction with
Selling, Goods or Services.” Under SFAS No. 123(R), the compensation associated with stock options paid to non-employees is
generally recognized in the period during which services are rendered by such non-employees. Since its adoption of SFAS 123(R),
there been no change to its equity plans or modifications of its outstanding stock-based awards.
Deferred compensation for non-employee option grants that do not vest immediately upon grant are recorded as an expense over
the vesting period of the underlying stock options. At the end of each financial reporting period prior to vesting, the value of these
options, as calculated using the Black Scholes option pricing model, will be re-measured using the fair value of the Company’s
common stock and deferred compensation and the non-cash compensation recognized during the period will be adjusted accordingly.
Since the fair market value of options granted to non-employees is subject to change in the future, the amount of the future
compensation expense is subject to adjustment until the stock options are fully vested. The Company recognized $1.5 million of stock
based compensation expense related to non-employee stock options in 2007.
Research and Development Expenses — Research and development expenses consist of costs incurred for direct and
overhead-related research expenses and are expensed as incurred. Costs to acquire technologies, including licenses, that are utilized in
research and development and that have no alternative future use are expensed when incurred. Technology developed for use in its
products is expensed as incurred until technological feasibility has been established.
Income Taxes — Income taxes are accounted for using an asset and liability approach that requires the recognition of deferred tax
assets and liabilities for the expected future tax consequences of events that have been recognized in the Company’s financial
statements or tax returns. A valuation allowance is established to reduce deferred tax assets if all, or some portion, of such assets will
more than likely not be realized.
Concentrations of Credit Risk — Financial instruments that potentially subject the Company to significant concentrations of credit
risk consist principally of cash, cash equivalents and short-term investments. The Company maintains cash and cash equivalents in
large well-capitalized financial institutions and the Company’s investment policy disallows investment in any debt securities rated less
than “investment-grade” by national ratings services. The Company has not experienced any losses on its deposits of cash and cash
equivalent or its short-term investments.
Use of Estimates — The preparation of the financial statements in conformity with accounting principles generally accepted in the
United States of America requires management to make estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Significant estimates include the accrual for research and development expenses, the basis for the
classification of current deferred revenue and the estimate of expense arising from the common stock options granted to employees
and non-employees. Actual results could materially differ from those estimates.
Reclassifications — Certain prior year balances have been reclassified to conform with the 2007 presentation, with no change in
net loss for prior periods presented.
Other comprehensive income/(loss) — The Company follows the provisions of Statement of Financial Accounting Standards
(“SFAS”) No. 130, “Reporting Comprehensive Income,” which requires separate representation of certain transactions, which are
recorded directly as components of shareholders’ equity. The Company has no components of other comprehensive income (loss) and
accordingly comprehensive loss is the same as net loss reported.
3. Recent Accounting Pronouncements
In July 2006, the Financial Accounting Standards Board (“FASB”) issued Interpretation No. 48, Accounting for Uncertainty in
Income Taxes, an interpretation of FASB Statement No. 109 (“FIN No. 48”), to create a single model to address accounting for
uncertainty in tax positions. FIN No. 48 clarifies the accounting for income taxes by prescribing a minimum recognition threshold in
which a tax position be reached before financial statement recognition. FIN No. 48 also provides guidance on derecognition,
measurement, classification, interest and penalties, accounting in interim periods, disclosure and transition. FIN No. 48 is effective for
F-9
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
fiscal years beginning after December 15, 2006. The Company adopted FIN No. 48 as of January 1, 2007, as required. The adoption of
FIN No. 48 did not have an impact on the Company’s financial position and results of operations.
In September 2006, the FASB issued Statement of Financial Accounting Standards (“SFAS”) No. 157, Fair Value Measurements
(“SFAS No. 157”). SFAS No. 157 defines fair value, establishes a framework for measuring fair value in accordance with generally
accepted accounting principles, and expands disclosures about fair value measurements. SFAS No. 157 does not expand the use of fair
value in any new circumstances. In February 2008, the FASB issued Staff Position No. FAS 157-1, which amended SFAS No. 157 to
exclude SFAS No. 13, Accounting for Leases, and other accounting pronouncements that address fair value measurements for
purposes of lease classification or measurement under Statement 13. However, this scope exception does not apply to assets acquired
and liabilities assumed in a business combination. Also in February 2008, the FASB issued Staff Position No. FAS 157-2, which
delayed the effective date of SFAS No. 157 for non-financial assets and liabilities, except those items recognized at fair value on an
annual or more frequently recurring basis to fiscal years beginning after November 15, 2008 and interim periods within those fiscal
years. The Company does not expect SFAS No. 157 will have a significant impact on the Company’s consolidated financial
statements.
In February 2007, the FASB issued SFAS No. 159, Fair Value Option for Financial Assets and Financial Liabilities (“SFAS
No. 159”). SFAS No. 159 permits entities to choose to measure many financial assets and financial liabilities at fair value. Unrealized
gains and losses on items for which the fair value option has been elected are reported in earnings. SFAS No. 159 is effective for fiscal
years beginning after November 15, 2007. The Company does not expect SFAS No. 159 will have a significant impact on the
Company’s consolidated financial statements.
In June 2007, the FASB ratified the consensus on Emerging Issues Task Force (“EITF”) Issue No. 06-11, Accounting for Income
Tax Benefits of Dividends on Share-Based Payment Awards (“EITF 06-11”). EITF 06-11 requires companies to recognize the income
tax benefit realized from dividends or dividend equivalents that are charged to retained earnings and paid to employees for non-vested
equity-classified employee share-based payment awards as an increase to additional paid-in capital. EITF 06-11 is effective for fiscal
years beginning after September 15, 2007. The adoption is not expected to have a significant impact on the Company’s consolidated
financial statements.
In June 2007, the FASB ratified the consensus reached on EITF Issue No. 07-3, Accounting for Nonrefundable Advance Payments
for Goods or Services Received for Use in Future Research and Development Activities (“EITF 07-3”), which requires that
nonrefundable advance payments for goods or services that will be used or rendered for future research and development activities be
deferred and amortized over the period that the goods are delivered or the related services are performed, subject to an assessment of
recoverability. EITF 07-3 will be effective for fiscal years beginning after December 15, 2007. The Company does not expect that the
adoption of EITF 07-3 will have an impact on the Company’s consolidated financial statements.
In December 2007, the FASB issued SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statements (“SFAS
No. 160”) and a revision to SFAS No. 141, Business Combinations (“SFAS No. 141R”). SFAS No. 160 modifies the accounting for
noncontrolling interest in a subsidiary and the deconsolidation of a subsidiary. SFAS No. 141R establishes the measurements in a
business combination of the identifiable assets acquired, the liabilities assumed and any noncontrolling interest in the acquiree. Both
of these related statements are effective for fiscal years beginning after December 15, 2008. The Company has not determined the
impact that the adoption of these two statements will have on the consolidated financial statements.
In December 2007, the SEC issued Staff Accounting Bulletin 110 (“SAB 110”), which expresses the views of the Staff regarding
use of a “simplified” method, as discussed in SAB 107, in developing an estimate of expected term of “plain vanilla” share options in
accordance with Statement of Financial Accounting Standards No. 123. SAB 110 will allow, under certain circumstances, the use of
the simplified method beyond December 31, 2007 when a Company is unable to rely on the historical exercise data. The Company
does not anticipate the adoption of SAB 110 having a material impact on our financial statements.
4. Accounts Receivable
At December 31, 2007 and 2006, the accounts receivable balance of $101,217 and $105,930, respectively, primarily related annual
licensing fees due to the Company. Due to the certainty of the collectability of the account receivable, no allowance was recorded.
F-10
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
5. Other Assets
At December 31, 2007 and 2006, the Company had approximately $713,000 and $196,000, respectively, of non-current other
assets, which consist primarily of security deposits on contracts for research and development and leases for its facilities.
6. Equipment, Furnishings and Molecular Library, net
Equipment, furnishings and molecular library, net, at December 31, 2007 and 2006 consist of the following (in thousands):
Equipment and furnishings
Less — accumulated depreciation
Property and equipment, net
Molecular library
Less — accumulated amortization
Molecular library, net
2007
$ 1,965
(392)
1,573
$
$
447
(253)
194
2006
502
(249)
253
447
(164)
283
$
$
$
The molecular library was purchased in 2004 and placed in service by the Company in March 2005. The molecular library is being
amortized over 60 months, which is less than the estimated effective life of the patents. The Company will incur related amortization
of approximately $89,000 in 2008, $89,000 in 2009 and $16,000 in 2010.
Depreciation and amortization expense for the years ended December 31, 2007, 2006 and 2005 were $272,000, $228,000, and
$217,000, respectively.
7. Accrued Expenses and Other Current Liabilities
Accrued expenses and other current liabilities at December 31, 2007 and 2006 are summarized below (in thousands).
Professional fees
Research and development costs
Wages, bonuses and employee benefits
Income taxes
Other
Total
8. Termination of the Atlanta Facility Lease
2007
$
907
873
1,255
30
636
$ 3,701
2006
$
900
1,013
404
145
260
$ 2,722
Subsequent to the Company’s merger with Global Genomics in 2002, it recorded a loss of $563,000 associated with the closure of
the Atlanta headquarters and its relocation to Los Angeles. This loss represented the total remaining lease obligations and estimated
operating costs through the remainder of the lease term, less estimated sublease rental income and deferred rent at the time. In
August 2005, the Company entered into a lease termination agreement pursuant to which it was released from all future obligations on
the lease in exchange for a one-time $110,000 payment and the forfeiture of a $49,000 security deposit. As a result of this agreement
the Company realized $164,000 in other income in 2005.
9. Commitments and Contingencies
The Company acquires assets still in development and enters into research and development arrangements with third parties that
often require milestone and royalty payments to the third party contingent upon the occurrence of certain future events linked to the
success of the asset in development. Milestone payments may be required, contingent upon the successful achievement of an
important point in the development life-cycle of the pharmaceutical product (e.g., approval of the product for marketing by a
regulatory agency). If required by the arrangement, CytRx may have to make royalty payments based upon a percentage of the sales of
the pharmaceutical product in the event that regulatory approval for marketing is obtained. Because of the contingent nature of these
payments, they are not included in the table of contractual obligations.
These arrangements may be material individually, and in the unlikely event that milestones for multiple products covered by these
arrangements were reached in the same period, the aggregate charge to expense could be material to the results of operations in any
one period. In addition, these arrangements often give CytRx the discretion to unilaterally terminate development of the product,
F-11
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
which would allow CytRx to avoid making the contingent payments; however, CytRx is unlikely to cease development if the
compound successfully achieves clinical testing objectives.
As a result of RXi’s separation from CytRx in March 2008 (see discussion in the “Our Separation from RXi Pharmaceuticals
Corporation” section on page 8), each of CytRx and RXi will be responsible for their respective future contractual obligations,
therefore, they are shown separately below.
CytRx’s current contractual obligations that will require future cash payments are as follows:
Operating
Leases
Non-Cancelable
Employment
Agreements
Subtotal
(1)
(2)
Research and
Development
(In thousands)
(3)
Cancelable
License
Agreements
Subtotal
2008
2009
2010
2011
2012 and thereafter
Total
$
$
446
236
145
11
—
838
$
$
900
650
—
—
—
1,550
$
$
1,346
886
145
11
—
2,388
$
$
4,035
3,279
3,045
2,188
681
13,228
$
$
RXi’s current contractual obligations that will require future cash payments are as follows:
(4)
—
—
—
—
—
—
$
4,035
3,279
3,045
2,188
681
$ 13,228
Total
$ 5,381
4,165
3,190
2,199
681
$ 15,616
Operating
Leases
Non-Cancelable
Employment
Agreements
Subtotal
(1)
(2)
Research and
Development
(In thousands)
(3)
Cancelable
License
Agreements
Subtotal
2008
2009
2010
2011
2012
2013 and thereafter
Total
$
$
180
105
—
—
—
—
285
$
$
942
448
290
105
—
—
1,785
$
$
1,122
553
290
105
—
—
2,070
$
$
—
—
—
—
—
—
—
$
$
(4)
716
666
616
816
1,126
10,325
14,265
$
716
666
616
816
1,126
10,325
$ 14,265
Total
$ 1,838
1,219
906
921
1,126
10,325
$ 16,335
(1)
(2)
(3)
(4)
Source: CYTRX CORP, 10-K, April 01, 2008
Operating leases are primarily facility lease related
obligations, as well as equipment and software lease
obligations with third party vendors.
Employment agreement obligations include
management contracts, as well as scientific advisory
board member compensation agreements. Certain
agreements, which have been revised from time to time,
provide for minimum salary levels, adjusted annually at
the discretion of the Company’s Compensation
Committee, as well as for minimum bonuses that are
payable.
Research and development obligations relate primarily
to clinical trials. Most of these purchase obligations are
cancelable.
License agreements generally relate to RXi’s
obligations with UMMS associated with RNAi and, for
future periods, represent minimum annual royalty
payment obligations. Not included in the table are
milestone payment amounts that may be required under
RXi’s license agreements, due to their contingent
nature. RXi has determined that a hypothetical product
candidate attaining all possible product milestones
would have aggregate potential milestone payments of
$36 million. This hypothetical product analysis was
undertaken since RXi has not yet named a lead product
candidate. RXi determined what would be a like product
candidate based on its current research and ran an
analysis of the milestone payments due under its current
licenses for this hypothetical product. As a part of this
analysis, due to the fact that certain of its licenses are
for technologies that are mutually exclusive, if any two
licenses are mutually exclusive and only one would be
applicable to any single product, RXi selected the
milestone payments that would result in higher fees to
include in its analysis.
The Company applies the disclosure provisions of FASB Interpretation No. (“FIN”) 45, “Guarantor’s Accounting and Disclosure
Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others” (“FIN 45”), to its agreements that contain
guarantee or indemnification clauses. The Company provides (i) indemnifications of varying scope and size to certain investors and
F-12
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
other parties for certain losses suffered or incurred by the indemnified party in connection with various types of third-party claims; and
(ii) indemnifications of varying scope and size to officers and directors against third party claims arising from the services they
provide to us. These indemnifications and guarantees give rise only to the disclosure provisions of FIN 45. To date, the Company has
not incurred material costs as a result of these obligations and does not expect to incur material costs in the future; further, the
Company maintains insurance to cover certain losses arising from these indemnifications. Accordingly, the Company has not accrued
any liabilities in its consolidated financial statements related to these indemnifications or guarantees.
10. Private Placements of Common Stock
On April 19, 2007, the Company completed a $37.0 million private equity financing in which we issued 8.6 million shares of its
common stock at $4.30 per share. Net of investment banking commissions, legal, accounting and other expenses related to the
transaction, the Company received approximately $34.2 million of proceeds.
On March 2, 2006, the Company completed a $13.4 million private equity financing in which it issued 10,650,795 shares of its
common stock and warrants to purchase an additional 5,325,397 shares of its common stock at an exercise price of $1.54 per share.
Net of investment banking commissions which included 745,556 warrants to purchase CytRx common stock at $1.54 per share, legal,
accounting and other expenses related to the transaction, the Company received approximately $12.4 million of proceeds.
In connection with the financing, the Company adjusted the price and number of underlying shares of warrants to purchase
approximately 2.8 million shares that had been issued in prior equity financings in May and September 2003. The adjustment was
made as a result of anti-dilution provisions in those warrants that were triggered by the Company’s issuance of common stock in that
financing at a price below the closing market price on the date of the transaction. The Company accounted for the anti-dilution
adjustments as deemed dividends analogous with the guidance in Emerging Issues Task Force Issues (“EITF”) No. 98-5, Accounting
for Convertible Securities with Beneficial Conversion Features or Contingently Adjustable Conversion Ratios, and EITF 00-27,
Application of 98-5 to Certain Convertible Instruments, recorded an approximate $488,000 charge to retained earnings and a
corresponding credit to additional paid-in capital.
In January 2005, the Company entered into a Stock Purchase Agreement with a group of institutional and other investors (the
“January 2005 Investors”). The January 2005 Investors purchased, for an aggregate purchase price of $21.3 million, 17,334,494 shares
of the Company’s common stock and warrants to purchase an additional 8,667,247 shares of the Company’s common stock, at $2.00
per share, expiring in 2010. After consideration of offering expenses, net proceeds to the Company were approximately $19.4 million.
The shares and the shares underlying the warrants issued to the January 2005 Investors were subsequently registered. In addition, the
Company issued approximately $158,000 worth of common stock in February 2005.
In connection with the March 2006 and January 2005 private equity financings, the Company entered into a registration rights
agreement with the purchasers of its stock and warrants, which provides among other things, for cash penalties in the event that the
Company were unable to initially register, or maintain the effective registration of the securities. The Company initially evaluated the
penalty provisions in light of EITF 00-19, Accounting for Derivative Financial Instruments Indexed To, and Potentially Settled In a
Company’s Own Stock, and determined that the maximum penalty does not exceed the difference between the fair value of a
registered share of CytRx common stock and unregistered share of CytRx common stock on the date of the transaction. The Company
then evaluated the provisions of FASB Staff Position No. EITF 00-19-2, Accounting for Registration Payment Arrangements, which
specifies that the contingent obligation to make future payments or otherwise transfer consideration under a registration payment
arrangement should be separately recognized and measured in accordance with FASB Statement No. 5, Accounting for Contingencies,
pursuant to which a contingent obligation must be accrued only if it is more likely than not to occur. In management’s estimation, the
contingent payments related to the registration payment arrangement are not likely to occur, and thus no amount need be accrued. The
Company has elected to reflect early adoption of FSP 00-19-2 in its 2006 financial statements, and the adoption did not have an effect
on its financial statements.
In connection with the Company’s private equity financing that was consummated on January 20, 2005, the Company adjusted the
price and number of underlying shares of warrants to purchase approximately 2.8 million shares that had been issued in prior equity
financings in May and September 2003. The adjustment was made as a result of anti-dilution provisions in those warrants that were
triggered by the Company’s issuance of common stock in that financing at a price below the closing market price on the date of the
transaction. Consistent with EITF No. 98-5 and EITF 00-27 the Company accounted for the anti-dilution adjustments as a deemed
dividend, which was recorded as an approximate $1.1 million charge to retained earnings and a corresponding credit to additional
paid-in capital.
F-13
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
11. Investment in CytRx Laboratories
On June 30, 2005, the Company issued 650,000 shares of its common stock to Dr. Michael Czech as part of a transaction in which
the Company purchased Dr. Czech’s 5% interest in CytRx Laboratories. As a result of this purchase, CytRx Laboratories became a
wholly-owned subsidiary of CytRx. CytRx Laboratories was subsequently merged with and into the Company on September 30, 2005.
The purchase of Dr. Czech’s interest in CytRx Laboratories was consummated pursuant to the terms of the Stockholders Agreement
dated September 17, 2003, by and among CytRx, CytRx Laboratories and Dr. Czech. Of the shares of CytRx common stock issued to
Dr. Czech 300,000 option shares were unrestricted and in exchange for his 5% interest in CytRx Laboratories. For financial statement
purposes, that stock was valued at $0.91 per share, the then fair value of the common stock. The non-cash transaction was accounted
for using purchase accounting and the difference between the market value of the 300,000 unrestricted shares issued to Dr. Czech and
the fair value of the minority interest at June 30, 2005, of $184,000 was recorded as goodwill for financial statement purposes.
12. Stock Options and Warrants
CytRx Options
As of December 31, 2007, an aggregate of 10,000,000 shares of common stock were reserved for issuance under the Company’s
2000 Stock Option Incentive Plan, as amended, including 5,999,300 shares subject to outstanding stock options and 2,192,000 shares
available for future grant. Additionally, the Company has two other plans, the 1994 Stock Option Plan and the 1998 Long Term
Incentive Plan, which include 9,167 and 100,041 shares subject to outstanding stock options. As the terms of the plans provide that no
options may be issued after 10 years, no options are available under the 1994 Plan. Under the 1998 Long Term Incentive Plan, 29,517
shares are available for future grant. Options granted under these plans generally vest and become exercisable as to 33% of the option
grants on each anniversary of the grant date until fully vested. The options will expire, unless previously exercised, not later than ten
years from the grant date.
The Company adopted the provisions of SFAS No. 123(R), Share-Based Payment (“SFAS 123(R)”), which requires the
measurement and recognition of compensation expense for all stock-based awards made to employees and non-employee directors.
The fair value of stock options at the date of grant was estimated based on the following assumptions:
Weighted average risk free interest rate
Dividend yields
Weighted average volatility
Expected lives (years)
2007
4.41%
0%
108%
6
2006
4.91%
0%
112%
6
2005
4.10%
0%
109%
8
The Company’s computation of expected volatility is based on the historical daily volatility of its publicly traded stock. For option
grants issued during the year ended December 31, 2007 and 2006, the Company used a calculated volatility for each grant. The
Company’s computation of expected life were estimated using the simplified method provided for under Staff Accounting Bulletin
107 (“SAB 107”), which averages the contractual term of the Company’s options of ten years with the average vesting term of three
years for an average of six years. In December 2007, Staff Accounting Bulletin 110 (“SAB 110”) was released which permits the
continued use of the simplified method when a Company is unable to relay on the historical exercise data. Since the Company is still
in its relatively early stages, it will continue with the simplified method. The dividend yield assumption of zero is based upon the fact
the Company has never paid cash dividends and presently has no intention of paying cash dividends. The risk-free interest rate used
for each grant is equal to the U.S. Treasury rates in effect at the time of the grant for instruments with a similar expected life. Based on
historical experience, for the years ended December 31, 2007 and 2006, the Company has estimated an annualized forfeiture rate of
10% and 10%, respectively, for options granted to its employees and 1% for each period for options granted to senior management
and directors. Compensation costs will be adjusted for future changes in estimated forfeitures. The Company will record additional
expense if the actual forfeitures are lower than estimated and will record a recovery of prior expense if the actual forfeiture rates are
higher than estimated. No amounts relating to employee stock-based compensation have been capitalized. Under provisions of SFAS
123(R), the Company recorded $1.7 million and $1.2 million of employee stock-based compensation for the years ended
December 31, 2007 and 2006, respectively.
F-14
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
At December 31, 2007, there remained approximately $3.4 million of unrecognized compensation expense related to unvested
employee stock options to be recognized as expense over a weighted-average period of 6 years. Presented below is the Company’s
stock option activity:
Outstanding — beginning of
year
Granted
Exercised
Forfeited
Expired
Outstanding — end of year
Exercisable at end of year
Weighted average fair value of
stock options granted during
the year:
2007
Stock Options
2006
2005
2007
Weighted Average
Exercise Price
2006
4,500,208
1,685,500
(1,030,933)
(222,503)
—
4,932,273
3,210,320
4,097,542
783,500
(82,500)
(296,667)
(1,667)
4,500,208
3,316,994
3,026,042
1,124,500
(15,000)
(38,000)
—
4,097,542
2,360,989
$
$
1.66
4.02
1.76
1.24
—
2.46
1.93
$
$
1.70
1.36
.97
1.59
1.00
1.66
1.84
2005
$
$
2.02
.83
1.00
1.52
—
1.70
1.98
$
3.34
$
1.16
$
.72
A summary of the activity for unvested employee stock options as of December 31, and changes during the year is presented
below:
Nonvested at January 1,
Granted
Vested
Pre-vested forfeitures
Nonvested at December 31,
2007
1,183,214
1,685,500
(924,259)
(222,503)
1,721,952
Stock Options
2006
1,736,553
783,500
(1,040,172)
(296,667)
1,183,214
2005
1,574,162
1,124,500
(924,109)
(38,000)
1,736,553
2007
$
$
.99
3.34
1.67
1.06
2.92
Weighted Average
Grant Date Fair
Value per Share
2006
$
$
1.16
1.16
1.29
1.39
.99
2005
1.77
0.72
1.65
1.34
1.16
$
$
The following table summarizes significant ranges of outstanding stock options under the three plans at December 31, 2007:
Range of
Exercise Prices
$0.25 — 1.00
$1.01 — 2.00
$2.01 — 3.00
$3.01 — 4.00
$4.01 — 4.65
Weighted Average
Remaining
Contractual Life Weighted Average
Number of Options
814,774
1,269,500
1,162,499
700,500
985,000
4,932,273
(years)
6.76
7.16
5.51
9.74
9.35
7.51
Exercise Price
$ 0.81
1.48
2.45
3.45
4.42
$ 2.46
Number of
Options
Exercisable
699,440
1,041,222
1,162,499
137,539
169,621
3,210,321
Weighted Average Weighted Average
Contractual Life
6.76
7.16
5.51
9.74
9.35
7.51
Exercise Price
$ 0.81
1.49
2.45
3.34
4.45
$ 1.93
The aggregate intrinsic value of outstanding options as of December 31, 2007, was $3,836,556 of which $3,273,003 is related to
exercisable options. The aggregate intrinsic value was calculated based on the positive difference between the closing fair market
value of the Company’s common stock on December 31, 2007 ($2.84) and the exercise price of the underlying options.
For stock options paid in consideration of services rendered by non-employees, the Company recognizes compensation expense in
accordance with the requirements of SFAS No. 123(R), Emerging Issues Task Force Issue No. 96-18 (“EITF 96-18”), Accounting for
Equity Instruments that are Issued to other than Employees for Acquiring, or in Conjunction with Selling Goods or Services and EITF
00-18, Accounting Recognition for Certain Transactions involving Equity Instruments Granted to Other Than Employees, as
amended.
Non-employee option grants that do not vest immediately upon grant are recorded as an expense over the performance period. At
the end of each financial reporting period prior to performance, the value of these options, as calculated using the Black-Scholes
option pricing model, will be determined, and compensation expense recognized during the period will be adjusted accordingly. Since
the fair market value of options granted to non-employees is subject to change in the future, the amount of the future compensation
expense is subject to adjustment until the common stock options are fully vested.
F-15
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
The Company recorded approximately $0.4 million, $1.3 million and $0.6 million of non-cash charges related to the issuance of
stock options to certain consultants in exchange for services during 2007, 2006 and 2005, respectively. In January 2007, the
Company’s RNAi operations (RXi Pharmaceuticals Corporation) began operating on a stand-alone basis (see “Our Separation from
RXi Pharmaceuticals Corporation” on page 8 for further details). Except for approximately $0.2 million in 2006, the non-cash charges
for services incurred during 2006 and 2005 relate primarily to the RXi operations and are discussed more fully in the “RXi Options”
section that follows on page F-17.
At December 31, 2007, there was no change in the number of non-employee options outstanding from the prior year. There
remained 1,067,000 options granted.
The fair value of stock options at the date of grant was estimated based on the following assumptions:
Weighted average risk free interest rate
Dividend yields
Weighted average volatility
Expected lives (years)
2007
—
—
—
—
2006
4.31%
0%
108%
6
A summary of the activity for nonvested stock options as of December 31, and changes during the years are presented below:
Nonvested at January 1,
Granted
Vested
Pre-vested forfeitures
Nonvested at December 31,
CytRx Warrants
Stock Options
2007
916,663
—
(104,163)
(562,500)
250,000
2006
1,030,831
250,000
(364,168)
—
916,663
Weighted Average Grant Date
Fair Value per Share
2007
2006
$
$
1.44
—
1.63
1.63
1.00
$
$
1.53
.95
1.35
—
1.44
A summary of the Company’s warrant activity and related information for the years ended December 31 are shown below.
Outstanding — beginning of
year
Granted
Exercised
Forfeited
Expired
Outstanding — end of year
Exercisable at end of year
Weighted average fair value
of warrants granted during
the year:
2007
Warrants
2006
2005
2007
Weighted Average
Exercise Price
2006
23,360,165
—
(10,233,650)
—
(95,000)
13,031,515
13,031,515
18,508,949
6,112,870
(1,261,654)
—
—
23,360,165
23,360,165
9,735,416
10,267,887
(1,294,354)
—
(200,000)
18,508,949
18,508,949
$
$
1.83
—
1.77
—
2.25
1.87
1.87
$
$
1.94
1.54
1.16
—
—
1.83
1.83
2005
$
$
1.64
1.96
0.55
—
1.00
1.94
1.94
$
—
$
1.54
$
2.00
The following table summarizes additional information concerning warrants outstanding and exercisable at December 31, 2007:
Range of Exercise Prices
$0.20 — 1.26
$1.54 — 1.84
$1.85 — 2.36
$2.37 — 2.67
Warrants Outstanding
Weighted
Average
Remaining
Contractual Life
(years)
1.68
5.35
4.98
5.04
4.98
F-16
Number of
Shares
482,001
4,183,844
7,056,917
1,308,753
13,031,515
Weighted
Average
Exercise Price
$ .20
1.59
2.00
2.67
$1.87
Warrants
Number of
Shares
Exercisable
482,001
4,183,844
7,056,917
1,308,753
13,031,515
Exercisable
Weighted Average
Exercise Price
$ .20
1.59
2.00
2.67
$ 1.87
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
RXi Options
As of December 31, 2007, an aggregate of 2.75 million shares of common stock were reserved for issuance under the RXi
Pharmaceuticals Corporation 2007 Incentive Plan, including approximately 1,340,000 shares subject to outstanding common stock
options granted under this plan and approximately 1,410,000 shares available for future grants. The administrator of the plan
determines the times which an option may become exercisable. Vesting periods of options granted to date include vesting upon grant
to vesting at the end of a five year period. The options will expire, unless previously exercised, not later than ten years from the grant
date.
RXi issued options to purchase approximately 1,340,000 shares of its common stock during 2007. The fair value of the common
stock options granted in the year listed in the table below was estimated using the Black-Scholes option-pricing model, based on the
following assumptions:
Weighted average risk free interest rate
Weighted average volatility
Expected lives (years)
Expected dividend yield
2007
4.50%
108.7%
6
0%
The fair value of RXi’s common stock and RXi’s expected common stock price volatility assumption is based upon a valuation
conducted by Sanli Pastore & Hill, an independent third party valuation firm engaged by the RXi’s Board of Directors, which
determined the RXi corporate valuation and analyzed the volatility of a basket of comparable companies. The expected life
assumptions were based upon the simplified method provided for under SAB 107, which averages the contractual term of RXi’s
options of ten years with the average vesting term of three years for an average of six years. The dividend yield assumption of zero is
based upon the fact that RXi has never paid cash dividends and presently has no intention of paying cash dividends. The risk-free
interest rate used for each grant was also based upon prevailing short-term interest rates. Based on CytRx’s historical experience, RXi
has estimated an annualized forfeiture rate of 4.0% for options granted to its employees, 2.1% for options granted senior management
and no forfeiture rate for the directors. RXi will record additional expense if the actual forfeitures are lower than estimated and will
record a recovery of prior expense if the actual forfeiture rates are higher than estimated. Under provisions of SFAS 123(R), RXi
recorded $1.0 million of employee stock-based compensation for the year ended December 31, 2007. No amounts relating to
employee stock-based compensation have been capitalized. As of December 31, 2007, there was $2.1 million of unrecognized
compensation cost related to outstanding options that is expected to be recognized as a component of RXi’s operating expenses
through 2011. Compensation costs will be adjusted for future changes in estimated forfeitures.
At December 31, 2007, the unrecognized compensation expense related to unvested common stock options granted to employees
and non-employee directors is expected to be recognized as expense over a weighted-average period of 1.8 years. Presented below is
RXi’s common stock activity:
Outstanding — beginning of year
Granted
Exercised
Forfeited
Outstanding — end of year
Exercisable at end of year
Stock Options
2007
—
1,139,375
(66,044)
(92,465)
980,866
274,129
Weighted Average
Exercise Price
2007
$ —
5.00
5.00
5.00
5.00
$ 5.00
A summary of the activity for nonvested stock options as of December 31, and changes during the year is presented below:
Nonvested at January 1,
Granted
Vested
Pre-vested forfeitures
Nonvested at December 31,
F-17
Stock Options
2007
Weighted Average
Grant Date Fair
Value per Share
2007
—
1,139,375
(274,129)
(92,465)
772,781
$
$
—
3.51
3.45
3.57
3.51
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
The following table summarizes significant ranges of outstanding stock options at December 31, 2007:
Range of
Exercise Prices
$5.00
Number of Options
980,866
Weighted Average
Remaining
Contractual Life
(years)
9.46
Weighted Average
Exercise Price
$5.00
Number of
Options
Exercisable
274,129
Weighted Average
Contractual Life
9.46
Weighted Average
Exercise Price
$5.00
The aggregate intrinsic value of outstanding options as of December 31, 2007 is negligible. The aggregate intrinsic value is
calculated based on the positive difference between the closing fair market value of RXi’s common stock on December 31, 2007 and
the exercise price of the underlying options.
Non-employee option grants that do not vest immediately upon grant are recorded as an expense over the vesting period of the
underlying stock options. At the end of each financial reporting period prior to vesting, the value of these options, as calculated using
the Black-Scholes option pricing model, will be re-measured using the fair value of RXi’s common stock and the non-cash
compensation recognized during the period will be adjusted accordingly. Since the fair market value of options granted to
non-employees is subject to change in the future, the amount of the future compensation expense will include fair value
re-measurements until the stock options are fully vested. RXi used an independent third-party valuation firm to estimate the fair
market value of RXi’s common stock and used the common stock fair market value as an input into the calculation of fair value of the
common stock options granted using the Black-Scholes option-pricing model. Under provisions of SFAS 123(R), EITF 96-18, RXi
recorded approximately $1.0 million of stock based compensation expense related to non-employee stock options for the year ended
December 31, 2007 in respect of RXi.
The fair value of non-employee stock options at the date of grant was estimated based on the following assumptions:
Weighted average risk free interest rate
Dividend yields
Weighted average volatility
Expected lives (years)
2007
4.39%
0%
109.4%
6
The fair value of RXi’s common stock and RXi’s expected common stock price volatility assumption is based upon Sanli Pastore
& Hill, Inc.’s valuation that determined the RXi corporate valuation and analyzed the volatility of a basket of comparable companies.
The expected life assumptions were based upon the simplified method provided for under SAB 107, which averages the contractual
term of RXi’s options of ten years with the average vesting term for an average of six years. The dividend yield assumption of zero is
based upon the fact that RXi has never paid cash dividends and presently has no intention of paying cash dividends. The risk-free
interest rate used for each grant was also based upon prevailing short-term interest rates.
At December 31, 2007, there remained approximately $489,000 of unrecognized compensation expense related to unvested
common stock options granted to non-employees is expected to be recognized as expense over a weighted-average period of 1.8 years.
Presented below is RXi’s common stock activity:
Outstanding — beginning of year
Granted
Exercised
Forfeited
Outstanding — end of year
Exercisable at end of year
F-18
Stock Options
2007
—
357,318
—
—
357,318
221,883
Weighted Average
Exercise Price
2007
$ —
5.00
—
—
5.00
$ 5.00
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
13. Stockholder Protection Rights Plan
Effective April 16, 1997, the Company’s board of directors declared a distribution of one right (“Rights”) for each outstanding
share of the Company’s common stock to stockholders of record at the close of business on May 15, 1997 and for each share of
common stock issued by the Company thereafter and prior to a Flip-in Date (as defined below). Each Right entitles the registered
holder to purchase from the Company one-ten thousandth (1/10,000th) of a share of Series A Junior Participating Preferred Stock, at
an exercise price of $30. The Rights are generally not exercisable until 10 business days after an announcement by the Company that a
person or group of affiliated persons (an “Acquiring Person”) has acquired beneficial ownership of 15% or more of the Company’s
then outstanding shares of common stock (a “Flip-in Date”).
In the event the Rights become exercisable as a result of the acquisition of shares, each Right will enable the owner, other than the
Acquiring Person, to purchase at the Right’s then-current exercise price a number of shares of common stock with a market value
equal to twice the exercise price. In addition, unless the Acquiring Person owns more than 50% of the outstanding shares of common
stock, the Board of Directors may elect to exchange all outstanding Rights (other than those owned by such Acquiring Person) at an
exchange ratio of one share of common stock per Right. All Rights that are owned by any person on or after the date such person
becomes an Acquiring Person will be null and void.
The Rights have been distributed to protect the Company’s stockholders from coercive or abusive takeover tactics and to give the
Board of Directors more negotiating leverage in dealing with prospective acquirors. The Company recently extended the stockholder
rights plan through April 2017.
14. Income Taxes
At December 31, 2007, the Company had United States federal and state net operating loss carryforwards of $109 million and
$52 million, respectively, available to offset against future taxable income, which expire in 2010 through 2027. As a result of a change
in-control that occurred in the CytRx shareholder base in July 2002, approximately $45 million in federal net operating loss
carryforwards became limited in their availability to $0.7 million annually. Management currently believes that the remaining $64
million in federal net operating loss carryforwards, and the $52 million in state net operating loss carryforwards, are unrestricted.
However, management is reviewing its recent equity transactions to determine if they may have resulted in any further restrictions on
the Company’s net operating loss carryforwards. Additionally, due to the change-in-control, approximately $6.3 million of research
and development tax credits will not be available for utilization and were written off. As of December 31, 2007, CytRx also had
research and development and orphan drug credits for federal and state purposes of approximately $3 million and $2 million,
respectively, available for offset against future income taxes, which expire in 2008 through 2027. Based on an assessment of all
available evidence including, but not limited to, the Company’s limited operating history in its core business and lack of profitability,
uncertainties of the commercial viability of its technology, the impact of government regulation and healthcare reform initiatives, and
other risks normally associated with biotechnology companies, the Company has concluded that it is more likely than not that these
net operating loss carryforwards and credits will not be realized and, as a result, a 100% deferred tax valuation allowance has been
recorded against these assets.
Deferred income taxes reflect the net effect of temporary differences between the financial reporting carrying amounts of assets
and liabilities and income tax carrying amounts of assets and liabilities. The components of the Company’s deferred tax assets and
liabilities, all of which are long-term, are as follows (in thousands):
Deferred tax assets:
Net operating loss carryforwards
Tax credit carryforwards
Equipment, furnishings and other
Deferred revenue
Total deferred tax assets
Deferred tax liabilities
Net deferred tax assets
Valuation allowance
December 31,
2007
2006
$ 39,919
3,114
4,124
6,200
53,357
(111)
53,246
(53,246)
$
—
$ 30,892
2,391
1,547
9,085
43,915
(85)
43,830
(43,830)
—
$
For all years presented, the Company did not recognize any deferred tax assets or liabilities. The net change in valuation allowance
for the years ended December 31, 2007 and 2006 were increases of $9,416,000 and $34,000, respectively.
F-19
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
The provision for income taxes differs from the provision computed by applying the Federal statutory rate to net loss before
income taxes as follows (in thousands):
Federal benefit at statutory rate
State income taxes, net of Federal taxes
Permanent differences
Provision related to change in valuation allowance
Net change in research and development tax credits
Change in state tax rates
Other, net
2007
Years ended December 31,
2006
$ (7,781)
(908)
65
9,416
(1,125)
—
373
40
$
$ (5,646)
(968)
143
34
5,059
2,160
(637)
145
$
2005
$ (5,128)
(603)
736
5,308
—
—
(313)
—
$
15. Quarterly Financial Data (unaudited)
Summarized quarterly financial data for 2007 and 2006 is as follows (in thousands, except per share data):
2007
Total revenues
Net loss
Deemed dividend for anti-dilution adjustments made to
outstanding common stock warrants
Net loss applicable to common stockholders
Basic and diluted loss per share applicable to common
stock
2006
Total revenues
Net loss
Deemed dividend for anti-dilution adjustments made to
outstanding common stock warrants
Net loss applicable to common stockholders
Basic and diluted loss per share applicable to common
stock
March 31
Quarters Ended
June 30
September 30
(In thousands, except per share data)
December 31
$
$
$
$
$
$
1,563
(4,546)
—
(4,546)
(0.06)
61
(4,166)
(488)
(4,654)
(0.07)
$
$
$
$
$
$
2,371
(6,285)
—
(6,285)
(0.07)
—
(5,465)
—
(5,465)
(0.08)
$
$
$
$
$
$
2,046
(4,597)
—
(4,597)
(0.05)
776
(2,972)
—
(2,972)
(0.04)
$
$
$
$
$
$
1,479
(6,462)
—
(6,462)
(0.07)
1,229
(4,148)
—
(4,148)
(0.06)
Quarterly and year to date loss per share amounts are computed independently of each other. Therefore, the sum of the per share
amounts for the quarters may not agree to the per share amounts for the year.
Our Statements of Operations as of and for the years ended December 31, 2007 and 2006 reflect the impact of SFAS 123(R). In
accordance with the modified prospective transition method, our results of operations for prior periods have not been restated to reflect
the impact of SFAS 123(R). Share-based compensation expense recognized under SFAS 123(R) for the years ended December 31,
2007 and 2006 were $2.7 and $1.2 million, respectively.
In connection with the Company’s adjustment to the exercise terms of certain outstanding warrants to purchase common stock on
March 2, 2006 and January 20, 2005, the Company recorded deemed dividends of $488,000 and $1.1 million, respectively. These
deemed dividends are reflected as an adjustment to net loss for the first quarter of 2006 and the year ended 2005 to arrive at net loss
applicable to common stockholders on the consolidated statements of operations and for purposes of calculating basic and diluted
earnings per shares.
Fourth Quarter Adjustment
During the fourth quarter of 2007, the Company recorded adjustments for: (i) additional compensation expense of $236,000 related
to previously granted non-employee stock options, (ii) additional compensation expense of $350,000 related to stock options
previously granted to Directors and (iii) additional general and administrative expense of $192,000 related to legal fees rendered
during the third quarter. Management concluded the effect of these adjustments was not material to any previously reported quarterly
period.
16. Subsequent Events
F-20
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
On February 14, 2008, the Company’s board of directors declared a dividend, payable to its stockholders as of March 6, 2008, the
record date, of one share of the common stock of RXi Pharmaceuticals Corporation for each approximately 20.05 shares of our
common stock held by such stockholders. The dividend was paid on March 11, 2008. The RXi shares distributed by the Company to
its stockholders constituted approximately 36% of the currently outstanding RXi shares, and as a result, the Company currently owns
approximately 49% of the outstanding shares of RXi common stock. As a result, the Company’s financial statements will no longer
consolidate the financial condition and results of operation of RXi, but instead will account for its ongoing investment in RXi based on
the equity method of accounting.
As of March 25, 2007, the Company has received approximately $1.0 million in connection with the exercise of warrants and
options since December 31, 2007. The exercise price of the warrants and options ranged from $.20 to $2.00.
F-21
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Stockholders
CytRx Corporation
Los Angeles, California
We have audited the accompanying consolidated balance sheets of CytRx Corporation (the “Company”) as of December 31, 2007
and 2006 and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the three years in the
period ended December 31, 2007. We have also audited the schedule listed in the accompanying index under Item 15a(2). These
financial statements and schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on
these financial statements and schedule based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States).
Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position
of CytRx Corporation at December 31, 2007 and 2006, and the results of its operations and its cash flows for each of the three years in
the period ended December 31, 2007, in conformity with accounting principles generally accepted in the United States of America.
Also, in our opinion, the schedule presents fairly, in all material respects, the information set forth therein.
As more fully described in Note 2 to the consolidated financial statements, effective January 1, 2006, the Company adopted
Statement of Financial Accounting Standard (“SFAS”) No. 123 (revised 2004), Share-based Payment.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the
Company’s internal control over financial reporting as of December 31, 2007, based on criteria established in Internal Control —
Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) and our report
dated April 1, 2008, expressed an adverse opinion on the effectiveness of the Company’s internal control over financial reporting due
to material weaknesses.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Los Angeles, California
April 1, 2008
F-22
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Stockholders
CytRx Corporation
Los Angeles, California
We have audited CytRx Corporation’s (the “Company”) internal control over financial reporting as of December 31, 2007, based on
criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the
Treadway Commission (the “COSO criteria”). CytRx Corporation’s management is responsible for maintaining effective internal
control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the
accompanying, “Item 9A, Management’s Report on Internal Control Over Financial Reporting”. Our responsibility is to express an
opinion on the Company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over
financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over
financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness
of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in
the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting
principles in the United States of America. A company’s internal control over financial reporting includes those policies and
procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and
dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of
the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets
that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections
of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in
conditions, or that the degree of compliance with the policies or procedures may deteriorate.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a
reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or
detected on a timely basis. The following material weaknesses have been identified and included in management’s assessment. As of
December 31, 2007, the Company did not maintain effective controls over its annual financial reporting process. We noted during our
substantive audit procedures that certain schedules provided by management contained errors indicating that the schedules had not
been reviewed, or reviewed in sufficient detail, to identify and correct the errors prior to the schedules being provided for audit. We
noted errors in schedules relating to accrued liabilities, stock compensation, research and development expenses and related revenue
recognition. In addition, we noted that there were lapses in the maintenance of the Company’s books and records. Material weaknesses
in financial reporting impacts the Company’s ability to report financial information in conformity with generally accepted accounting
principles in the United States of America, which could affect all significant financial statement accounts. These material weaknesses
were considered in determining the nature, timing and extent of audit tests applied in our audit of the 2007 consolidated financial
statements, and this report does not affect our report dated April 1, 2008 on those consolidated financial statements.
In our opinion, CytRx Corporation did not maintain, in all material respects, effective internal control over financial reporting as of
December 31, 2007, based on the COSO criteria. We do not express an opinion or any other form of assurance on management’s
statements referring to any corrective actions taken by the Company after the date of management’s assessment.
F-23
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the
consolidated balance sheets of CytRx Corporation as of December 31, 2007 and 2006, and the related consolidated statements of
operations, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2007 and our report
dated April 1, 2008 expressed an unqualified opinion thereon.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Los Angeles, California
April 1, 2008
F-24
Source: CYTRX CORP, 10-K, April 01, 2008
Table of Contents
CYTRX CORPORATION
SCHEDULE II — VALUATION AND QUALIFYING ACCOUNTS
For the Years Ended December 31, 2007, 2006 and 2005
Description
Reserve Deducted in the Balance
Sheet from the Asset to Which it
Applies:
Allowance for Deferred Tax Assets
Year ended December 31, 2007
Year ended December 31, 2006
Year ended December 31, 2005
Balance at
Beginning of
Year
Additions
Charged to
Costs and
Expenses
Charged to
Other
Accounts
Deductions
Balance at
End of Year
$43,830,000
43,796,000
38,488,000
$ —
—
—
F-25
$9,416,000
34,000
5,308,000
$ —
—
—
$53,246,000
43,830,000
43,796,000
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION OF
CYTRX CORPORATION
As Approved by the Board of Directors on November 13, 2007
CytRx Corporation, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is CytRx Corporation. CytRx Corporation was originally incorporated under the name SynthRx,
Inc., and the original certificate of incorporation of the corporation was filed with the Secretary of State of Delaware on February 28,
1985.
2. This Restated Certificate of Incorporation was duly adopted in accordance with Section 245 of the Delaware General
Corporation Law.
3. This Restated Certificate of Incorporation merely restates and integrates, but does not further amend, the provisions of the
corporation’s certificate of incorporation as theretofore amended or supplemented, and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of Incorporation.
FIRST: The name of the corporation (hereinafter called the “corporation”) is CytRx Corporation.
SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of
Delaware is 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle; and the name of the registered agent of the
corporation in the State of Delaware at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and of the purposes to be conducted and promoted by the corporation are as follows:
To manufacture, prepare, compound, refine, distill, produce, invent, discover, devise, develop, conduct scientific researches in
respect of and exploit the findings therefrom, acquire, assign, and transfer formulae, concentrates, compounds, and processes for,
apply, buy, sell, import and export, and generally deal in and with at wholesale and retail and as principal, agent, broker,
distributor, sales, financial, and special representative, licensor, licensee, and in any other lawful capacity, pharmaceuticals,
drugs and nutritional aspects for animals and humans.
To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The total number of shares of all classes of stock that the corporation shall have the authority to issue is One Hundred
Fifty-Five Million (155,000,000), of which One Hundred Fifty Million (150,000,000) shall be common stock, par value $.001 per
share (the “Common Stock”), and Five Million (5,000,000) shall be preferred stock, par value $.01 per share (the “Preferred Stock”).
Source: CYTRX CORP, 10-K, April 01, 2008
The Board of Directors is hereby authorized, subject to any limitations prescribed by law, to provide for the issuance of the shares
of Preferred Stock in series, and by filing a Certificate pursuant to the applicable law of the State of Delaware (hereinafter referred to
as a “Preferred Stock Designation”), to establish from time to time the number of shares to be included in each such series, and to fix
the designations, powers, preferences, and rights of the shares of each such series, any qualifications, limitations or restrictions
thereof.
1. Series A Junior Participating Preferred Stock. There is hereby established a series of Preferred Stock, par value $0.01 per share,
of the Corporation, and the designation and certain terms, powers, preferences and other rights of the shares of such series, and certain
qualifications, limitations and restrictions thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be “Series A Junior Participating Preferred Stock” (hereinafter called
“this Series”). Each share of this Series shall be identical in all with the other shares of this Series except as to the date from and after
which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall be 5,000, which number may from time to time be increased or decreased (but not
below the number then outstanding) by the Board of Directors. Shares of this Series purchased by the Corporation shall be canceled
and shall revert to authorized but unissued shares of Preferred Stock undesignated as to series. Shares of this Series may be issued in
fractional shares, which fractional shares shall entitle the holder, in proportion to such holder’s fractional share, to all rights of a holder
of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor, dividends, (A) on each date that dividends or other distributions payable in
Common Stock of the Corporation are payable on or in respect of Common Stock comprising part of the Reference Package (as
defined below), in an amount per whole share of this Series equal to the aggregate amount of dividends or other distributions (other
than dividends or distributions payable in Common Stock of the Corporation) that would be payable on such date to a holder of the
Reference Package and (B) on the last day of March, June, September and December in each year, in an amount per whole share of
this Series equal to the excess (if any) of $1.00 over the aggregate dividends paid per whole share of this Series during the three-month
period ending on such last day. Each such dividend shall be paid to the holders of record of shares of this Series on the date, not
exceeding sixty days preceding such dividend or distribution payment date, fixed for that purpose by the Board of Directors in
advance of payment of each particular dividend or distribution. Dividends on each full and each fractional share of this Series shall be
cumulative from the date such full or fractional share is originally issued; provided that any such full or fractional share originally
issued after a dividend record date and on or prior to the dividend payment date to which such record date relates shall not be entitled
to receive the dividend payable on such dividend payment date or any amount in respect of the period from such original issuance to
such dividend payment date.
The term “Reference Package” shall initially mean 10,000 shares of Common Stock, par value $.00l per share (“Common Stock”),
of the Corporation. In the event the Corporation shall
2
Source: CYTRX CORP, 10-K, April 01, 2008
at any time (A) declare or pay a dividend on any Common Stock payable in Common Stock, (B) subdivide any common Stock or
(C) combine any Common Stock into a smaller number of shares, then and in each such case the Reference Package after such event
shall be the Common Stock that a holder of the Reference Package immediately prior to such event would hold thereafter as a result
thereof.
Holders of shares of this Series shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided on this Series.
So long as any shares of this Series are outstanding, no dividend (other than a dividend in Common Stock or in any other stock
ranking junior to this Series as to dividends and upon liquidation) shall be declared or paid or set aside for payment or other
distribution declared or made upon the Common Stock or upon any other stock ranking junior to this Series as to dividends or upon
liquidation, nor shall any Common Stock nor any other stock of the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to this series as to dividends and upon liquidation), unless, in each case, the full
cumulative dividends (including the dividend to be due upon payment of such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall have been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of this Series
shall at the same time be similarly exchanged or changed in an amount per whole share equal to the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may be, that a holder of the Reference Package would be
entitled to receive as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary,
the holders of full and fractional shares of this Series shall be entitled, before any distribution or payment is made on any date to the
holders of the Common Stock or any other stock of the Corporation ranking junior to this Series upon liquidation, to be paid in full an
amount per whole share of this Series equal to-the greater of (A) $1.00 or (B) the aggregate amount distributed or to be distributed
prior to such date in connection with such liquidation, dissolution or winding up to a holder of the Reference Package (such greater
amount being hereinafter referred to as the “Liquidation Preference”), together with accrued dividends to such distribution or payment
date, whether or not earned or declared. If such payment shall have been made in full to all holders of shares of this Series, the holders
of shares of this Series as such shall have no right or claim to any of the remaining assets of the Corporation.
In the event the assets of the Corporation available for distribution to the holders of shares of this Series upon any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to
which such holders are
3
Source: CYTRX CORP, 10-K, April 01, 2008
entitled pursuant to the first paragraph of this Section (v), no such distribution shall be made on account of any shares of any other
class or series of Preferred Stock ranking on a parity with the shares of this Series upon such liquidation, dissolution or winding up
unless proportionate distributive amounts shall be paid on account of the shares of this Series, ratably in proportion to the full
distributable, amounts for which holders of all such parity shares are respectively entitled upon such liquidation, dissolution or
winding up.
Upon the liquidation, dissolution or winding up of the Corporation, the holders of shares of this Series then outstanding shall be
entitled to be paid out of assets of the Corporation available for distribution to its stockholders all amounts to which such holders are
entitled pursuant to the first paragraph of this Section (v) before any payment shall be made to the holders of Common Stock or any
other stock of the Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation or merger of. or binding share exchange by, the Corporation with any other
corporation shall not be deemed to constitute a liquidation, dissolution or winding up of the corporation.
(vi) The shares of this series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders required by law or by the Certificate of Incorporation, as amended,
of the Corporation, each whole share of this Series shall, on any matter, vote as a class with any other capital stock comprising part of
the Reference Package and voting on such matter and shall have the number of votes thereon that a holder of the Reference Package
would have.
FIFTH: The name and the mailing address of the incorporator are as follows:
R. G. Dickerson
NAME
229 South State Street, Dover, Delaware
MAILING ADDRESS
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them
and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application
of any receiver or receivers appointed, for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on
the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of section
279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree
4
Source: CYTRX CORP, 10-K, April 01, 2008
to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement,
the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been
made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as
the case may be, and also on this corporation.
EIGHTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition,
limitation and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case
may be, it is further provided:
1. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The
number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the By-Laws.
The phrase “whole Board” and the phrase “total number of directors” shall be deemed to have the same meaning, to wit, the total
number of directors which the corporation would have if there were no vacancies. No election of directors need be by written ballot.
2. After the original or other By-Laws of the corporation have been adopted, amended, or repealed, as the case may be, in
accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the corporation has
received any payment for any of its stock, the power to adopt, amend, or repeal the By-Laws of the corporation may be exercised by
the Board of Directors of the corporation; provided, however, that any provision for the classification of directors of the corporation
for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of
Delaware shall be set forth in an initial By-Law or in a By-Law adopted by the stockholders entitled to vote of the corporation unless
provisions for such classification shall be set forth in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder
thereof to notice o1 and the right to vote at, any meeting of stockholders. Whenever the corporation shall be authorized to issue more
than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate
of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of
paragraph (b) (2) of section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no
share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in
the number of authorized shares of said class.
NINTH: The corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify
under said section from and against any and all of the expenses, liabilities or other matters referred to in or covered by said section,
and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be
entitled under any By-Law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and shall
5
Source: CYTRX CORP, 10-K, April 01, 2008
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.
TENTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time
prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of
incorporation are granted subject to the provisions of this Article TENTH.
ELEVENTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary
damages for breath of fiduciary duly as a director, except for liability (i) for any breach of the director’s duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware General Corporation Law is amended after approval by the stockholders of this
Article to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of
the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal or modification.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been signed by Steven A. Kriegsman, its authorized
officer this 15th day of November 2007.
CYTRX CORPORATION
By:
/s/ Steven A. Kriegsman
Steven A. Kriegsman
President and Chief Executive Officer
6
Source: CYTRX CORP, 10-K, April 01, 2008
CERTIFICATE OF INCREASE
OF
SHARES DESIGNATED
AS
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
* * * * *
CytRx Corporation, a corporation organized and existing under the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
That an Amended and Restated Certificate of Incorporation of said corporation was filed in the Office of the Secretary of State of
Delaware on November 15, 2007.
That the Board of Directors of said corporation duly adopted a resolution authorizing and directing an increase in the number of
shares designated as Series A Junior Participating Preferred Stock of said corporation from 5,000 shares to 15,000 shares, in
accordance with the provisions of section 151 of The General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said CytRx Corporation has caused this certificate to be signed by Steven A. Kriegsman, its President
and Chief Executive Officer this 24th day of January 2008.
CYTRX CORPORATION
By: /s/ Steven A. Kriegsman
Steven A. Kriegsman
President and Chief Executive Officer
7
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Exhibit 3.2
RESTATED BY-LAWS
OF
CYTRX CORPORATION
(a Delaware Corporation)
REFLECTING AMENDMENTS
THROUGH JUNE 26, 1997
Source: CYTRX CORP, 10-K, April 01, 2008
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the corporation shall be entitled to have a certificate
signed by, or in the name of, the corporation by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the President
or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation
certifying the number of shares owned by him in the corporation. If such certificate is countersigned by a transfer agent other than the
corporation or its employee or by a registrar other than the corporation or its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock,
and whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates representing shares of any such
class or series or of any such partly paid stock shall set forth thereon the statements prescribed by the General Corporation Law. Any
restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on the
certificate representing such shares.
The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it alleged to have been lost,
stolen, or destroyed, and the Board of Directors may require the owner of any lost, stolen, or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on
account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be required to, issue tractions of a share. In lieu
thereof it shall either pay in cash the fair value of fractions of a share, as determined by the Board of Directors, to those entitled
thereto or issue scrip or fractional warrants in registered or bearer form over the manual or facsimile signature of an officer of the
corporation or of its agent, exchangeable as therein provided for full shares, but such scrip or fractional warrants shall not entitle the
holder to any rights of a stockholder except as therein provided. Such scrip or fractional warrants may be issued subject to the
condition that the same shall become void if not exchanged for certificates representing full shares of stock before a specified date, or
subject to the condition that the shares of stock for which such scrip or fractional warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of such scrip or fractional warrants, or subject to any other conditions
which the Board of Directors may determine.
3. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if
any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation
by the
2
Source: CYTRX CORP, 10-K, April 01, 2008
registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of
the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares of stock
properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to or dissent from any corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to receive payment of any dividend or other distribution or
the allotment of any rights, or to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of
any other lawful action, the directors may fix, in advance, a date as the record date for any such determination of stockholders. Such
date shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any
other action. If no record date is fixed, the record date for the determination of stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is held; the record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
When a determination of stockholders of record entitled to notice of or to vote at any meeting of stockholders has been made as
provided in this paragraph, such determination shall apply to any adjournment thereof; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of stockholders or a waiver
thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term “share” or
“shares” or “share of stock” or “shares of stock” or “stockholder” or “stockholders” refers to an outstanding share or shares of stock
and to a holder or holders of record of outstanding shares of stock when the corporation is authorized to issue only one class of shares
of stock, and said reference is also intended to include any outstanding share or shares of stock and any holder or holders of record of
outstanding shares of stock of any class upon which or upon whom the certificate of incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the General Corporation Law confers such rights
notwithstanding that the certificate of incorporation may provide for more than one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder; provided, however, that no such right shall vest in the event of an increase or
decrease in the authorized number of shares of stock of any class or series which is otherwise denied voting rights under the provisions
of the certificate of incorporation.
6. STOCKHOLDERS MEETINGS
TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the directors, provided, that the
first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive
annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall
be held on the date and at the time fixed by the directors.
3
Source: CYTRX CORP, 10-K, April 01, 2008
PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the directors
from time to time may fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the registered office of the
corporation in the State of Delaware.
CALL. Annual meetings and special meetings may be called by the directors or by any officer instructed by the directors to call the
meeting.
NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be given, stating the place, date, and hour of the meeting
and stating the place within the city or other municipality or community at which the list of stockholders of the corporation may be
examined. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of
other business which may properly come before the meeting, and shall (if any, other action which could be taken at a special meeting
is to be taken at such annual meeting) state the additional purpose or purposes. The notice of a special meeting shall in all instances
state the purpose or purposes for which the meeting is called. If any action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares of stock, the notice shall include a statement of that purpose and to that effect. Except
as otherwise provided by the General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail, not
less than ten days nor more than fifty days before the date of the meeting, unless the lapse of the prescribed period of time shall have
been waived, and shall be directed to each stockholder at his record address or at such other address which he may have furnished by
request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage
thereon prepaid, in the United States mail. If a meeting is adjourned to another time, not more than thirty days hence, and/or to another
place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the
adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given
to any stockholder who submits a written waiver of notice by him before or after the time stated therein. Attendance of a person at a
meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders
need be specified in any written waiver of notice.
STOCK-HOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten
days before every meeting of stockholders, a complete list of the stockholders, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city or other municipality or community where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list also shall be
produced and kept at the time and place where the meeting is to be held. The list also shall be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock ledger shall be the
only evidence as to who are the stockholders entitled to examine
4
Source: CYTRX CORP, 10-K, April 01, 2008
the stock ledger, the list required by this section or the books of the corporation, or to vote at any meeting of stockholders.
CONDUCT OF MEETING. Meetings of the stockholders shall be presided over by one of the following officers in the order of
seniority and if present and acting — the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a
Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the
Secretary nor an Assistant Secretary is present the chairman of the meeting shall appoint a secretary of the meeting.
PROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in
which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or
expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his attorney-in-fact. No proxy
shall be voted or acted upon after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall
be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the
stock itself or an interest in the corporation generally.
INSPECTORS AND JUDGES. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors of
election or judges of the vote, as the case may be, to act at the meeting or any adjournment thereof. If an inspector or inspectors or
judge or judges are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors or judges. In
case any person who may be appointed as an inspector or judge fails to appear or act, the vacancy may be filled by appointment made
by the directors in advance of the meeting or at the Meeting by the person presiding thereat. Each inspector or judge, if any, before
entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector or judge at such
meeting with strict impartiality and according to the best of his ability. The inspectors or judges, if any, shall determine the number of
shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or
inspectors or judge or judges, if any, shall make a report in writing of any challenge, question or matter determined by him or them
and execute a certificate of any fact found by him or them.
QUORUM. The holders of a majority of the outstanding shares or stock shall constitute a quorum at a meeting of stockholders for
the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum.
VOTING. Each share of common stock shall entitle the holder thereof to one vote. The voting rights of holders of Preferred Stock
shall be as set forth in Preferred Stock Designations
5
Source: CYTRX CORP, 10-K, April 01, 2008
adopted by the Board of Directors in accordance with Article Fourth of the Certificate of Incorporation. In the election of directors, a
plurality of the votes cast by holders of each class of stock entitled to elect directors or a class of directors shall elect. Any other action
shall be authorized by a majority of the votes cast except where the General Corporation Law prescribes a different percentage of
votes and/or a different exercise of voting power. In the election of directors, voting need not be by ballot. Voting by ballot shall not
be required for any other corporate action except as otherwise provided by General Corporation Law.
7. STOCKHOLDER ACTION WITHOUT MEETINGS. Whenever the vote of stockholders at a Meeting thereof is required or
permitted to be taken for or in connection with any corporate action, the meeting and vote of stockholders may be dispensed with if all
of the stockholders who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such
corporate action being taken; or if less than all of said stockholders, but not less than those having at least the minimum voting power
required to take corporate action under the provisions of the General Corporation Law, shall consent in writing to such corporate
action; provided that prompt notice be given to all stockholders of the taking of such action without a meeting and by less than
unanimous written consent.
8. STOCKHOLDER PROPOSALS. Except as provided in Article II, Section 2 of these By-laws with respect to stockholder
nominations of director candidates, any stockholder entitled to vote in the election of directors may propose any action or actions for
consideration by the stockholders at any meeting of stockholders only if written notice of such stockholder’s intent to propose such
action or actions for consideration by the stockholders has been given, either by personal delivery or by registered or certified mail, to
the Secretary of the corporation, by the date specified under Rule 14a-8(a)(4) of the 1934 Act (or any amendment or successor to such
rule) as the deadline for submitting stockholder proposals for any meeting of stockholders called for purposes of electing directors.
(The Rule currently requires that stockholder proposals be submitted no later than 120 days before the anniversary of the mailing date
of the previous year’s proxy statement.) The deadline for nominations shall apply regardless of any postponement or adjournment of
any such meeting and regardless of whether the Company is subject to the 1934 Act.
Each such notice shall set forth:
(1) the name and address of the stockholder who intends to make the proposal and any other stockholders known by the proposing
stockholder to be supporting such proposal;
(2) a representation that the stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to propose such action or actions for consideration by the stockholders; and
(3) such information regarding each action as would be required to be included in a proxy statement filed with the Securities and
Exchange Commission pursuant to the proxy rules of the 1934 Act.
6
Source: CYTRX CORP, 10-K, April 01, 2008
The chairman of the meeting may refuse to consider any stockholder proposal not made in compliance with the foregoing procedure,
in addition to any other basis for such refusal afforded by the 1934 Act or otherwise.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business of the corporation shall be managed by the Board of Directors of the
corporation. The use of the phrase whole board herein refers to the total number of directors which the corporation would have if there
were no vacancies.
2. QUALIFICATIONS AND NUMBER.
(a)Qualifications. Each director of the corporation shall be a natural person of full age. A director of the corporation need not be
a citizen of the United States, a resident of the State of Delaware or a stockholder of the corporation.
(b)Nomination of Candidates. Nominations of candidates for election to the board of directors at a meeting of the stockholders
may be made only by or at the direction of a majority of the board of directors or a nominating committee appointed by the board of
directors or by any stockholder entitled to vote in such election. A nomination may be made by a stockholder only if written notice of
the nomination has been given to the Secretary of the corporation, either by personal delivery or registered or certified mail, not less
than the date specified under Rule 14a8(a)(4) of the Securities Exchange Act of 1934 (the “ 1934 Act”) (or any amendment or
successor to such rule) as the deadline for submitting stockholder proposals for any meeting of stockholders called for purposes of
electing directors. (The Rule currently requires that stockholder proposals be submitted no later than 120 days before the anniversary
of the mailing date of the previous year’s proxy statement.) The deadline for nominations shall apply regardless of any postponement
or adjournment of any such meeting and regardless of whether the Company is subject to the 1934 Act. Each such notice shall set
forth:
(1) the name and address of the stockholder who intends to make the nomination and any other stockholders known by the
nominating stockholder to be supporting such nominee;
(2) the number of shares of stock beneficially owned by each stockholder specified in clause (1) and a representation that the
stockholder is a holder of record or beneficial owner of shares of the corporation entitled to vote at the meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified in the notice;
(3) the name, address and principal occupation or employment of the person or persons to be nominated;
(4) the number of shares of any class of the corporation’s stock beneficially owned by each such person;
7
Source: CYTRX CORP, 10-K, April 01, 2008
(5) a description of all arrangements or understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder;
(6) such other information regarding each nominee proposed by the stockholder as would be required to be disclosed
pursuant to Regulation 13D under the 1934 Act, as amended or included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission if the nominee had been nominated by the board of directors, regardless of whether such person
is subject to the provisions of any such rules or regulations;
(7) a representation signed by the nominee that he or she meets the qualifications specified in Section 2(a); and
(8) the written consent of each nominee, signed by such nominee, to serve as a director of the corporation if so elected.
The Secretary of the corporation shall notify a stockholder in writing whether such stockholder’s nomination has been made in
accordance with the time and information requirements of this Section 2.
Only persons nominated in accordance with the procedures set forth in this Section 2(b) shall be eligible for election as directors at
a meeting of stockholders called for the purpose of electing directors. Accordingly, the chairman of the meeting shall determine
whether any nomination by a stockholder has been made in compliance with the foregoing procedure.
Any stockholder nomination for a director to be elected by the holders of a class or series of stock of the corporation must be made
by a stockholder of the same class or series.
3. CLASSES, ELECTION, TERM OF OFFICE AND VACANCIES. The directors shall be divided into three classes, designated
as Classes I, II and III, with each class consisting as nearly as possible of one-third (1/3) of the total number of directors. The directors
elected at the 1997 annual meeting of stockholders shall be placed in such classes and shall serve such terms as were described in the
Proxy Statement delivered to the Company’s stockholders in connection with such meeting. At the 1998 annual meeting of
stockholders and at each subsequent annual meeting of stockholders, directors elected to succeed those whose terms are expiring shall
be elected for a term of office to expire at the third succeeding annual meeting of stockholders. The directors shall be elected at annual
meetings of the stockholders, and each director elected shall hold office until his successor is elected and qualified or until his earlier
death, resignation or removal. In the interim between annual meetings of stockholders or special meetings of stockholders called for
the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, any
vacancy in the Board of Directors resulting from a newly created directorship or from the death, resignation or removal of a director
may be filled by the vote of a majority of the directors then in office, although less than a quorum, or by the sole remaining director. A
director selected to fill such vacancy shall serve until the end of the term of the position filled or until his successor is elected and
qualified or his earlier death, resignation or removal.
8
Source: CYTRX CORP, 10-K, April 01, 2008
4. MEETINGS.
TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be
held as soon after its election as the directors may conveniently assemble.
PLACE. Meetings shall be held at such place within or without the State of Delaware as shall be fixed by the Board.
CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called
by or at the direction of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, or a majority of the
directors in office.
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and
place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient
time for the convenient assembly of the directors thereat. The notice of any meeting need not specify the purpose of the meeting. Any
requirements of furnishing a notice shall be waived by any director who signs a written waiver of such notice before or after the time
stated therein. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except when the director
attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
QUORUM AND ACTION. A majority of the whole Board shall constitute a quorum except when a vacancy or vacancies prevents
such majority, whereupon a majority of the directors in office shall constitute a quorum, provided, that such majority shall constitute
at least one-third of the whole Board. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting
to another time and place. Except as herein otherwise provided, and except as otherwise provided by the General Corporation Law, the
act of the Board shall be the act by vote of a majority of the directors present at a meeting, a quorum being present. The quorum and
voting provisions herein stated shall not be construed as conflicting with any provisions of the General Corporation Law and these
By-Laws which govern a meeting of directors held to fill vacancies and newly created directorships in the Board.
CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings.
Otherwise, the Vice-Chairman of the Board, if any and if present and acting, or the President, if present and acting, or any other
director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed from the Board of Directors only for cause, by action
of either the stockholders or the Board of Directors.
6. COMMITTEES. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of two or more of the directors of the corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting
9
Source: CYTRX CORP, 10-K, April 01, 2008
of the committee. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise the powers
of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it. in the absence or disqualification of any member of any such committee
or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
7. ACTION IN WRITING. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
The directors shall elect a President, a Secretary, and a Treasurer, and may elect a Chairman of the Board of Directors, a
Vice-chairman thereof, and one or more Vice-Presidents, Assistant Secretaries, and Assistant Treasurers, and may elect or appoint
such other officers and agents as are desired. The President may but need not be a director. Any number of offices may be held by the
same person.
Officers shall have the powers and duties defined in the resolutions appointing them; provided, that the Secretary shall record all
proceedings of the meetings or of the written actions of the stockholders and of the directors, and any committee thereof, in a book to
be kept for that purpose.
The Board of Directors may remove any officer for cause or without cause.
The corporate seal shall be in such form as the Board of Directors shall prescribe.
ARTICLE IV
CORPORATE SEAL
ARTICLE V
INDEMNIFICATION
1. MANDATORY INDEMNIFICATION. The corporation shall indemnify, to the fullest extent permissible under Delaware law,
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, including an action or suit by or in the right of the corporation to
procure a judgment in its favor, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint
10
Source: CYTRX CORP, 10-K, April 01, 2008
venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
2. MANDATORY ADVANCEMENT OF EXPENSES. Expenses reasonably and actually incurred by a director, officer,
employee, or agent in the course of defending any suit under paragraph 1 of this Article V shall be paid by the corporation in advance
of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director, officer,
employee, or agent to repay such amounts if it is ultimately determined that he is not entitled to be indemnified by the corporation.
The corporation shall pay these expenses as they are incurred by the person who may be entitled to indemnification.
3. CONTINUATION OF RIGHT TO INDEMNIFICATION. The indemnification and advancement of expenses expressly
provided by this bylaw shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the
benefit of his heirs, executors and administrators.
4. INTENT OF BYLAW. The intent of this Article V is to provide the broadest possible rights to indemnification to the directors,
officers, employees, and agents of the corporation permissible under the law of Delaware and not to affect any other right to
indemnification that may exist.
The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors.
ARTICLE VI
FISCAL YEAR
ARTICLE VII
CONTROL OVER BY-LAWS
The power to amend, alter, and repeal these By-Laws and to adopt new By-Laws, except a By-Law classifying directors for
election for staggered terms, shall be vested in the Board of Directors as well as in the stockholders.
11
Source: CYTRX CORP, 10-K, April 01, 2008
Amended Article I of the Restated Bylaws of CytRx Corporation
(As amended December 17, 2007)
ARTICLE VIII
STOCKHOLDERS
1. CERTIFICATED OR UNCERTIFICATED SHARES OF STOCK. Shares of stock in the corporation shall be represented by
certificates, or shall be uncertificated, as determined by the Board of Directors in its discretion. Every holder of stock in the
corporation, if any, represented by certificates shall be entitled to have a certificate signed by, or in the name of, the corporation by the
Chairman or Vice-Chairman of the Board of Directors, if any, or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation certifying the number of shares owned by such holder
in the corporation. If such a certificate is countersigned by a transfer agent other than the corporation or its employee or by a registrar
other than the corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed upon such a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock,
and whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates, if any, representing shares of any
such class or series or of any such partly paid stock shall set forth thereon any statements prescribed by the General Corporation Law.
Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on
the certificates or in the uncertificated share registration records of the corporation.
The corporation may issue a new certificate of stock, or, if such stock is no longer certificated, a registration of stock, in place of
any certificate theretofore issued by it alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the
owner of any lost, stolen, or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or
the issuance of any such new certificate or uncertificated shares.
2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be required to, issue fractions of a share. In lieu
thereof it shall either pay in cash the fair value of fractions of a share, as determined by the Board of Directors, to those entitled
thereto or issue scrip or fractional warrants in registered or bearer form over the manual or facsimile signature of an officer of the
corporation or of its agent, exchangeable as therein provided for full shares, but such scrip or fractional warrants shall not entitle the
holder to any rights of a stockholder except as therein provided. Such scrip or fractional warrants may be issued subject to the
condition that the same shall become void if not exchanged for certificated or uncertificated shares representing
12
Source: CYTRX CORP, 10-K, April 01, 2008
full shares of stock, as the case may be, before a specified date, or subject to the condition that the shares of stock for which such scrip
or fractional warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of such
scrip or fractional warrants, or subject to any other conditions which the Board of Directors may determine.
3. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if
any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the books of the corporation by
the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary
of the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares of
stock properly endorsed, or, if such shares are uncertificated, by notification to the corporation or its stock transfer agent of the
transfer of such shares, accompanied by written authorization properly executed, and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to or dissent from any corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to receive payment of any dividend or other distribution or
the allotment of any rights, or to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of
any other lawful action, the directors may fix, in advance, a date as the record date for any such determination of stockholders. Such
date shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any
other action. If no record date is fixed, the record date for the determination of stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is held; the record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
When a determination of stockholders of record entitled to notice of or to vote at any meeting of stockholders has been made as
provided in this paragraph, such determination shall apply to any adjournment thereof; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of stockholders or a waiver
thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term “share” or
“shares” or “share of stock” or “shares of stock” or “stockholder” or “stockholders” refers to an outstanding share or shares of stock
and to a holder or holders of record of outstanding shares of stock when the corporation is authorized to issue only one class of shares
of stock, and said reference is also intended to include any outstanding share or shares of stock and any holder or holders of record of
outstanding shares of stock of any class upon which or upon whom the certificate of incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the General Corporation Law confers such rights
notwithstanding that the certificate of incorporation may provide for more than one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder; provided, however, that no such right shall vest in the event of an increase or
decrease in the
13
Source: CYTRX CORP, 10-K, April 01, 2008
authorized number of shares of stock of any class or series which is otherwise denied voting rights under the provisions of the
certificate of incorporation.
6. STOCKHOLDERS MEETINGS.
TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the directors, provided, that the
first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive
annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall
be held on the date and at the time fixed by the directors.
PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the directors
from time to time may fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the registered office of the
corporation in the State of Delaware.
CALL. Annual meetings and special meetings may be called by the directors or by any officer instructed by the directors to call the
meeting.
NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be given, stating the place, date, and hour of the meeting
and stating the place within the city or other municipality or community at which the list of stockholders of the corporation may be
examined. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of
other business which may properly come before the meeting, and shall (if any, other action which could be taken at a special meeting
is to be taken at such annual meeting) state the additional purpose or purposes. The notice of a special meeting shall in all instances
state the purpose or purposes for which the meeting is called. If any action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares of stock, the notice shall include a statement of that purpose and to that effect. Except
as otherwise provided by the General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail, not
less than ten days nor more than fifty days before the date of the meeting, unless the lapse of the prescribed period of time shall have
been waived, and shall be directed to each stockholder at his record address or at such other address which he may have furnished by
request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage
thereon prepaid, in the United States mail. If a meeting is adjourned to another time, not more than thirty days hence, and/or to another
place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the
adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given
to any stockholder who submits a written waiver of notice by him before or after the time stated therein. Attendance of a person at a
meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders
need be specified in any written waiver of notice.
14
Source: CYTRX CORP, 10-K, April 01, 2008
STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city or other municipality or community where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list also shall be
produced and kept at the time and place where the meeting is to be held. The list also shall be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock registration records
of the corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
this section or the books of the corporation, or to vote at any meeting of stockholders.
CONDUCT OF MEETING. Meetings of the stockholders shall be presided over by one of the following officers in the order of
seniority and if present and acting — the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a
Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the
Secretary nor an Assistant Secretary is present the chairman of the meeting shall appoint a secretary of the meeting.
PROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in
which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or
expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his attorney-in-fact. No proxy
shall be voted or acted upon after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall
be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the
stock itself or an interest in the corporation generally.
INSPECTORS AND JUDGES. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors of
election or judges of the vote, as the case may be, to act at the meeting or any adjournment thereof. If an inspector or inspectors or
judge or judges are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors or judges. In
case any person who may be appointed as an inspector or judge fails to appear or act, the vacancy may be filled by appointment made
by the directors in advance of the meeting or at the Meeting by the person presiding thereat. Each inspector or judge, if any, before
entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector or judge at such
meeting with strict impartiality and according to the best of his ability. The inspectors or judges, if any, shall determine the number of
shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and
15
Source: CYTRX CORP, 10-K, April 01, 2008
tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness
to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors or judge or judges, if any, shall make
a report in writing of any challenge, question or matter determined by him or them and execute a certificate of any fact found by him
or them.
QUORUM. The holders of a majority of the outstanding shares or stock shall constitute a quorum at a meeting of stockholders for
the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum.
VOTING. Each share of common stock shall entitle the holder thereof to one vote. The voting rights of holders of Preferred Stock
shall be as set forth in Preferred Stock Designations adopted by the Board of Directors in accordance with Article Fourth of the
Certificate of Incorporation. In the election of directors, a plurality of the votes cast by holders of each class of stock entitled to elect
directors or a class of directors shall elect. Any other action shall be authorized by a majority of the votes cast except where the
General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power. In the election of
directors, voting need not be by ballot. Voting by ballot shall not be required for any other corporate action except as otherwise
provided by General Corporation Law.
7. STOCKHOLDER ACTION WITHOUT MEETINGS. Whenever the vote of stockholders at a Meeting thereof is required or
permitted to be taken for or in connection with any corporate action, the meeting and vote of stockholders may be dispensed with if all
of the stockholders who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such
corporate action being taken; or if less than all of said stockholders, but not less than those having at least the minimum voting power
required to take corporate action under the provisions of the General Corporation Law, shall consent in writing to such corporate
action; provided that prompt notice be given to all stockholders of the taking of such action without a meeting and by less than
unanimous written consent.
8. STOCKHOLDER PROPOSALS. Except as provided in Article II, Section 2 of these By-laws with respect to stockholder
nominations of director candidates, any stockholder entitled to vote in the election of directors may propose any action or actions for
consideration by the stockholders at any meeting of stockholders only if written notice of such stockholder’s intent to propose such
action or actions for consideration by the stockholders has been given, either by personal delivery or by registered or certified mail, to
the Secretary of the corporation, by the date specified under Rule 14a-8(a)(4) of the 1934 Act (or any amendment or successor to such
rule) as the deadline for submitting stockholder proposals for any meeting of stockholders called for purposes of electing directors.
(The Rule currently requires that stockholder proposals be submitted no later than 120 days before the anniversary of the mailing date
of the previous year’s proxy statement.) The deadline for nominations shall apply regardless of any postponement or adjournment of
any such meeting and regardless of whether the Company is subject to the 1934 Act. Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the proposal and any other stockholders known by the
proposing stockholder to be supporting such proposal;
16
Source: CYTRX CORP, 10-K, April 01, 2008
(b) a representation that the stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose such action or actions for consideration by the stockholders; and
(c) such information regarding each action as would be required to be included in a proxy statement filed with the Securities and
Exchange Commission pursuant to the proxy rules of the 1934 Act.
The chairman of the meeting may refuse to consider any stockholder proposal not made in compliance with the foregoing procedure,
in addition to any other basis for such refusal afforded by the 1934 Act or otherwise.
17
Source: CYTRX CORP, 10-K, April 01, 2008
Amended Article II, Section 2(a) of the Restated Bylaws of CytRx Corporation
(As amended January 17, 2008)
(a) Qualifications and Number. Each director of the Corporation shall be a natural person of full age. A director of the Corporation
need not be a citizen of the United States, a resident of the State of Delaware or a stockholder of the Corporation. The total number of
directors which shall constitute the whole Board of Directors shall be as fixed by resolution of the Board of Directors.
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
SUBSIDIARIES
Exhibit 21.1
GGC Pharmaceuticals, Inc.
On September 30, 2005, CytRx Corporation (“CytRx”) completed the merger of CytRx Laboratories, Inc., previously a wholly owned
subsidiary of CytRx and the owner of its Massachusetts laboratory, with and into CytRx.
As a result of the March 11, 2008 distribution of approximately 36% of the outstanding common stock of RXi Pharmaceuticals
Corporation (“RXi”) to CytRx’s stockholders, CytRx currently owns approximately 49% of the outstanding common stock of RXi.
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
CytRx Corporation
Los Angeles, California
We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (Nos. 333-100947, 333-122732,
333-120208, 333-109708, 333-106629, 333-133269, 333-142591 and 333-147605) and Form S-8 (Nos. 333-84657, 333-68200,
333-91068, 333-93305 and 333-1213339) of CytRx Corporation (the “Company”) of our reports dated April 1, 2008, relating to the
consolidated financial statements and financial statement schedule and the ineffectiveness of the Company’s internal control over
financial reporting due to material weaknesses appearing in this Form 10-K.
EXHIBIT 23.1
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Los Angeles, California
April 1, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Exhibit 31.1
I, Steven A. Kriegsman, Chief Executive Officer of CytRx Corporation, certify that:
1. I have reviewed this annual report on Form 10-K of CytRx Corporation;
CERTIFICATIONS
2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading
with respect to the periods covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in
all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented
in this annual report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in which this annual report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be
designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions
about the effectiveness of the disclosure controls and procedures, as of the end of the periods covered by this report based on such
evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the
registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected,
or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting
which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information;
and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the
registrant’s internal control over financial reporting.
Date: April 1, 2008
/s/ STEVEN A. KRIEGSMAN
Steven A. Kriegsman
Chief Executive Officer
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Exhibit 31.2
I, Mitchell K. Fogelman, Chief Financial Officer of CytRx Corporation, certify that:
1. I have reviewed this annual report on Form 10-K of CytRx Corporation;
CERTIFICATIONS
2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading
with respect to the periods covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in
all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented
in this annual report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act
Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in which this annual report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be
designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions
about the effectiveness of the disclosure controls and procedures, as of the end of the periods covered by this report based on such
evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the
registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected,
or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over
financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting
which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information;
and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the
registrant’s internal control over financial reporting.
Date: April 1, 2008
/s/ MITCHELL K. FOGELMAN
Mitchell K. Fogelman
Chief Financial Officer
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Exhibit 32.1
Certification of Chief Executive Officer
Pursuant to 18 U.S.C. 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of CytRx
Corporation (the “Company”) hereby certifies that:
(i) the accompanying Annual Report on Form 10-K of the Company for the year ended December 31, 2007 (the “Report”) fully
complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended;
and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of
the Company.
Date: April 1, 2008
/s/ STEVEN A. KRIEGSMAN
Steven A. Kriegsman
Chief Executive Officer
A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 (Section 906), or other
document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version
of this written statement required by Section 906, has been provided to CytRx Corporation and will be retained by CytRx Corporation
and furnished to the Securities and Exchange Commission or its staff upon request.
The foregoing certification is being furnished to the Securities and Exchange Commission as an Exhibit to the Form 10-K and shall
not be considered filed as part of the Form 10-K.
Source: CYTRX CORP, 10-K, April 01, 2008
Source: CYTRX CORP, 10-K, April 01, 2008
Exhibit 32.2
Certification of Chief Financial Officer
Pursuant to 18 U.S.C. 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of CytRx
Corporation (the “Company”) hereby certifies that:
(i) the accompanying Annual Report on Form 10-K of the Company for the year ended December 31, 2007 (the “Report”) fully
complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended;
and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of
the Company.
Date: April 1, 2008
/s/ MITCHELL K. FOGELMAN
Mitchell K. Fogelman
Chief Financial Officer
A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 (Section 906), or other
document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version
of this written statement required by Section 906, has been provided to CytRx Corporation and will be retained by CytRx Corporation
and furnished to the Securities and Exchange Commission or its staff upon request.
The foregoing certification is being furnished to the Securities and Exchange Commission as an Exhibit to the Form 10-K and shall
not be considered filed as part of the Form 10-K.
_______________________________________________
Created by 10KWizard www.10KWizard.com
Source: CYTRX CORP, 10-K, April 01, 2008