Purchasers. By:_____________________________ EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are registering the shares of common stock on behalf of the selling stockholders. The common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected at various times in one or more of the following transactions, or in other kinds of transactions: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. inter-dealer system of a registered national securities association on which the common stock and the warrants may be listed or quoted at the time of sale; o in the over-the-counter market; o in private transactions and transactions otherwise than on these exchanges or systems or in the over-the-counter market; o in connection with short sales of the shares; o by pledge to secure or in payment of debt and other obligations; o through the writing of options, whether the options are listed on an options exchange or otherwise; o in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or o through a combination of any of the above transactions. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, may sell the common stock directly to purchasers or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders or the purchasers. These discounts, concessions or commissions as to any particular underwriter, broker-dealer or agent may be in excess of those customary in the types of transactions involved. The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We entered into a registration rights agreement for the benefit of the selling stockholders to register the common stock under applicable federal and state securities laws. The registration rights agreement provides for cross-indemnification of the selling stockholders and us and our respective directors, officers and controlling persons against specific liabilities in connection with the offer and sale of the common stock, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting in connection with a proposed sale of shares of common stock by any selling stockholder. If we are notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus. If the selling stockholders use this prospectus for any sale of the shares of common stock, they will be subject to the prospectus delivery requirements of the Securities Act. The anti-manipulation rules of Regulation M under the Securities Exchange Act may apply to sales of our common stock and activities of the selling stockholders. EXHIBIT C --------- FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address of Transfer Agent] ----------------- ----------------- ----------------- Attn: ____________ Re: CytRx Corporation Ladies and Gentlemen: We are counsel to CytRx Corporation, a Delaware corporation (the "COMPANY"), and have represented the Company in connection with that certain Securities Purchase Agreement (the "PURCHASE AGREEMENT"), dated as of September 15, 2003, by and among the Company and the purchasers (the "PURCHASERS" and the "HOLDERS") named therein pursuant to which the Company issued to the Purchasers shares (the "SHARES") of its Common Stock, $0.001 par value. Pursuant to the Purchase Agreement, the Company has also entered into a Registration Rights Agreement with the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), dated as of September 15, 2003, pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), including the Shares, under the Securities Act of 1933, as amended (the "1933 ACT"). In connection with the Company's obligations under the Registration Rights Agreement, on _________ __, 2003, the Company filed a Registration Statement on Form S-3 (File No. 333-________) (the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities which names the Holders as selling stockholders thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant to the terms of, the Registration Statement. Very truly yours, By:
Appears in 1 contract
Purchasers. By:_____________________________ NAME AND ADDRESS COPY OF NOTICE TO: ---------------- ----------------- ------------------------------ ---------------------------------- SCO Capital Partners LLC Wiggin and Dana LLP 1785 Avexxx xx the Xxxxicas 400 Atlantic Street 35th Floxx Xxxxxxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx: (000) 363-7630 Attn: Steven X. Xxxxxxxxx Xxxxxxxxx: (000) 363-7676 T: (212) 554-0000 Xxxx: Xxchael Grundei, Esq. F: (210) 000-0000 ------------------------------ ---------------------------------- Lake End Capital LLC 33 Tall Oaks Drive Summit, Nxx Xxxxxx 00000 Xxxx: Xxxxxxx X. Xxxxx X: (212) 550-0000 X: (000) 554-0000 ------------------------------ ---------------------------------- EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are registering the shares of common stock on behalf of the selling stockholderssecurity holders. The common stock Sales of shares may be sold made by selling security holders, including their respective donees, transferees, pledgees or other successors-in-interest directly to purchasers or to or through underwriters, broker-dealers or through agents. Sales may be made from time to time on the [__________], any other exchange or market upon which our shares may trade in one the future, in the over-the-counter market or more transactions at fixed pricesotherwise, at prevailing market prices prevailing at the time of sale, at prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated or fixed prices. These sales The shares may be effected at various times in sold by one or more of, or a combination of, the following: - a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the following transactions, or block as principal to facilitate the transaction (including crosses in other kinds which the same broker acts as agent for both sides of transactions: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. intertransaction); - purchases by a broker-dealer system of a registered national securities association on which the common stock as principal and the warrants may be listed or quoted at the time of saleresale by such broker-dealer, including resales for its account, pursuant to this prospectus; o in the over-the-counter market; o in private - ordinary brokerage transactions and transactions otherwise than on these exchanges in which the broker solicits purchases; - through options, swaps or systems derivatives; - in privately negotiated transactions; - in making short sales or in the over-the-counter markettransactions to cover short sales; o in connection with short sales of and - put or call option transactions relating to the shares; o by pledge to secure or in payment of debt and other obligations; o through the writing of options, whether the options are listed on an options exchange or otherwise; o in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or o through a combination of any of the above transactions. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, security holders may sell the common stock effect these transactions by selling shares directly to purchasers or to or through underwritersbroker-dealers, which may act as agents or principals. These broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders security holders and/or the purchasers of shares for whom such broker-dealers may act as agents or the purchasers. These discountsto whom they sell as principals, concessions or commissions both (which compensation as to any a particular underwriter, broker-dealer or agent may might be in excess of those customary in the types of transactions involvedcommissions). The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We entered into a registration rights agreement for the benefit of the selling stockholders to register the common stock under applicable federal and state securities laws. The registration rights agreement provides for cross-indemnification of the selling stockholders and us and our respective directors, officers and controlling persons against specific liabilities in connection with the offer and sale of the common stock, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders holders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their securities. The selling security holders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with those transactions, the broker-dealers or other financial institutions may engage in short sales of the shares or of common stocksecurities convertible into or exchangeable for the shares in the course of hedging positions they assume with the selling security holders. The selling security holders may also enter into options or other transactions with broker-dealers or other financial institutions which require the delivery of shares offered by this prospectus to those broker-dealers or other financial institutions. The broker-dealer or other financial institution may then resell the shares pursuant to this prospectus (as amended or supplemented, nor is there an underwriter or coordinating broker acting if required by applicable law, to reflect those transactions). The selling security holders and any broker-dealers that act in connection with a proposed the sale of shares may be deemed to be "underwriters" within the meaning of common stock Section 2(11) of the Securities Act of 1933, and any commissions received by broker-dealers or any profit on the resale of the shares sold by them while acting as principals may be deemed to be underwriting discounts or commissions under the Securities Act. The selling stockholdersecurity holders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the shares against liabilities, including liabilities arising under the Securities Act. If we are We have agreed to indemnify each of the selling security holders and each selling security holder has agreed, severally and not jointly, to indemnify us against some liabilities in connection with the offering of the shares, including liabilities arising under the Securities Act. The selling security holders will be subject to the prospectus delivery requirements of the Securities Act. We have informed the selling security holders that the anti-manipulative provisions of Regulation M promulgated under the Securities Exchange Act of 1934 may apply to their sales in the market. Selling security holders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided they meet the criteria and conform to the requirements of Rule 144. Upon being notified by any a selling stockholder security holder that any a material arrangement has been entered into with a broker-dealer for the sale of shares of common stockthrough a block trade, if requiredspecial offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus, if required pursuant to Rule 424(b) under the Securities Act, disclosing: - the name of each such selling security holder and of the participating broker-dealer(s); - the number of shares involved; - the initial price at which the shares were sold; - the commissions paid or discounts or concessions allowed to the broker-dealer(s), where applicable; - that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus; and - other facts material to the transactions. If In addition, if required under applicable law or the selling stockholders use rules or regulations of the Commission, we will file a supplement to this prospectus for any sale of the when a selling security holder notifies us that a donee or pledgee intends to sell more than 500 shares of common stock, they will be subject to . We are paying all expenses and fees in connection with the prospectus delivery requirements registration of the Securities Actshares. The antiselling security holders will bear all brokerage or underwriting discounts or commissions paid to broker-manipulation rules of Regulation M under dealers in connection with the Securities Exchange Act may apply to sales of our common stock and activities sale of the selling stockholdersshares. EXHIBIT C --------- B FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address Address of Transfer Agent] ----------------- ----------------- ----------------- AttnRe: MacroChem Corporation Dear [____________ Re: CytRx Corporation Ladies and Gentlemen]: We are counsel to CytRx MacroChem Corporation, a Delaware corporation (the "COMPANYCompany"), and have represented the Company in connection with that certain Securities Preferred Stock and Warrant Purchase Agreement (the "PURCHASE AGREEMENTPurchase Agreement"), ) dated as of September 15__________________, 2003, 2005 by and among the Company and the purchasers buyers named therein (collectively, the "PURCHASERS" and the "HOLDERSHolders") named therein pursuant to which the Company issued to the Purchasers shares Holders its Series C Cumulative Convertible Preferred Stock, par value $0.01 per share, (the "SHARESPreferred Stock") convertible into shares of its the Company's common stock, par value $0.01 per share (the "Common Stock"), $0.001 par valueand warrants to purchase shares of the Common Stock (the "Warrants"). Pursuant to the Purchase Agreement, the Company has also entered into a Registration an Investor Rights Agreement with the Purchasers Holders (the "REGISTRATION RIGHTS AGREEMENTInvestor Rights Agreement"), dated as of September 15, 2003, ) pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in shares of Common Stock issuable upon conversion of the Registration Rights Agreement), including Preferred Stock and exercise of the SharesWarrants, under the Securities Act of 1933, as amended (the "1933 ACTAct"). In connection with the Company's obligations under the Registration Investor Rights Agreement, on ____________ ___, 20032005, the Company filed a Registration Statement on Form S-3 S-[__] (File No. 333-_____________) (the "REGISTRATION STATEMENTRegistration Statement") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities (as defined in the Investor Rights Agreement) which names each of the Holders as a selling stockholders securityholder thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, and the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant to the terms of, the Registration Statement. Very truly yours, By:: ---------------------------- cc: [LIST NAMES OF HOLDERS]
Appears in 1 contract
Purchasers. By:_____________________________ SCHEDULE I COMPANY ALLIANCE PHARMACEUTICAL CORP. 0000 Xxxx Xxxxxxxxx San Diego, California 92121 Attention: President Facsimile: (000) 000-0000 PURCHASERS: EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are The Company is registering the shares of common stock Registrable Securities on behalf of the Holder. As used herein, the term Holder means the holder of the Registrable Securities and includes donees and pledgees selling stockholdersRegistrable Securities received from a named Holder after the date of this Prospectus. The common stock All costs, expenses and fees in connection with the registration of the Registrable Securities offered hereby will be borne by the Company. Brokerage commissions and similar selling expenses, if any, attributable to the sale of Registrable Securities will be borne by the Holders. Sales of Registrable Securities may be sold effected by Holders from time to time in one or more types of transactions at fixed prices(which may include block transactions) on the Nasdaq National Market, at prevailing market prices at in the time over-the-counter market, in negotiated transactions, through put or call options transactions relating to the Registrable Securities, through short sales of Registrable Securities, or a combination of such methods of sale, at market prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated prices. These sales Such transactions may be effected at various times in one or more of the following transactions, may not involve brokers or in other kinds of transactions: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. inter-dealer system of a registered national securities association on which the common stock and the warrants may be listed or quoted at the time of sale; o in the over-the-counter market; o in private transactions and transactions otherwise than on these exchanges or systems or in the over-the-counter market; o in connection with short sales of the shares; o by pledge to secure or in payment of debt and other obligations; o through the writing of options, whether the options are listed on an options exchange or otherwise; o in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or o through a combination of any of the above transactionsdealers. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, may sell the common stock directly to purchasers or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders or the purchasers. These discounts, concessions or commissions as to any particular underwriter, broker-dealer or agent may be in excess of those customary in the types of transactions involved. The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We entered into a registration rights agreement for the benefit of the selling stockholders to register the common stock under applicable federal and state securities laws. The registration rights agreement provides for cross-indemnification of the selling stockholders and us and our respective directors, officers and controlling persons against specific liabilities in connection with the offer and sale of the common stock, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders Holders have advised us the Company that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stocksecurities, nor is there an underwriter or coordinating coordinated broker acting in connection with a the proposed sale of shares Registrable Securities by the Holders. The Holders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with such transactions, broker-dealers or other financial institutions may engage in short sales of common stock the Registrable Securities or of securities convertible into or exchangeable for the Registrable Securities in the course of hedging positions they assume with Holders. The Holders may also enter into options or other transactions with broker-dealers or other financial institutions which require the delivery to such broker-dealers or other financial institutions of Registrable Securities offered by this Prospectus, which Registrable Securities such broker-dealer or other financial institution may resell pursuant to this Prospectus (as amended or supplemented to reflect such transaction). The Holders may effect such transactions by selling Registrable Securities directly to purchasers or to or through broker-dealers, which may act as agents or principals. Such broker-dealers may receive compensation in the form of discounts, concessions or commissions from Holders and/or the purchasers of Registrable Securities for whom such broker-dealers may act as agents or to whom they sell as principal, or both (which compensation as to a particular broker-dealer might be in excess of customary commissions). The Holders and any selling stockholderbroker-dealers that act in connection with the sale of Registrable Securities might be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act, and any commissions received by such broker-dealers any profit on the resale of the Registrable Securities sold by them while acting as principals might be deemed to be underwriting discounts or commissions under the Securities Act. If we are The Company has agreed to indemnify each Holder against certain liabilities, including liabilities arising under the Securities Act. The Holders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the Registrable Securities against certain liabilities, including liabilities arising under the Securities Act. The Holders may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act. The Holders will be subject to the prospectus delivery requirements of the Securities Act. The Company has informed the Holders that the anti-manipulative provisions of Regulation M promulgated under the Exchange Act may apply to their sales in the market. Holders also may resell all or a portion of the Registrable Securities in open market transactions in reliance upon Rule 144 under the Securities Act, provided they meet the criteria and conform to the requirements of such Rule. Upon the Company being notified by any selling stockholder a Holder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stockRegistrable Securities through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this Prospectus will be filed, if required, we will file pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such Holder and of the participating broker-dealer(s), (ii) the number of Registrable Securities involved, (iii) the initial price at which such Registrable Securities were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this Prospectus and (vi) other facts material to the transactions. In addition, upon the Company being notified by a Holder that a donee or pledgee intends to sell more than 500 Registrable Securities, a supplement to this prospectus. If the selling stockholders use this prospectus for any sale of the shares of common stock, they Prospectus will be subject to the prospectus delivery requirements of the Securities Act. The anti-manipulation rules of Regulation M under the Securities Exchange Act may apply to sales of our common stock and activities of the selling stockholdersfiled. EXHIBIT C --------- B FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address of Transfer AgentTRANSFER AGENT] ----------------- ----------------- ----------------- Attn.: ____________ Re: CytRx Corporation Alliance Pharmaceutical Corp. Ladies and Gentlemen: We are counsel to CytRx CorporationAlliance Pharmaceutical Corp., a Delaware New York corporation (the "COMPANYCompany"), and have represented the Company in connection with that certain Securities Purchase Agreement (the "PURCHASE AGREEMENTPurchase Agreement"), dated as of September 15, 2003, ) entered into by and among the Company and the purchasers buyers named therein (collectively, the "PURCHASERS" and the "HOLDERSHolders") named therein pursuant to which the Company issued to the Purchasers shares Holders its 5% convertible debentures due February __, 2004 (the "SHARESDebentures") convertible into shares of its the Company's common stock, par value $0.01 per share (the "Common Stock, $0.001 par value"). Pursuant to the Purchase Agreement, the Company also has also entered into a Registration Rights Agreement with the Purchasers Holders (the "REGISTRATION RIGHTS AGREEMENTRegistration Rights Agreement"), dated as of September 15, 2003, ) pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), including the Sharesshares of Common Stock issuable upon conversion of the Debentures, under the Securities Act of 1933, as amended (the "1933 ACTAct"). In connection with the Company's obligations under the Registration Rights Agreement, on _________ _______, 20031999, the Company filed a Registration Statement on Form S-3 (File No. 333-_____________) (the "REGISTRATION STATEMENTRegistration Statement") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities which names each of the Holders as a selling stockholders stockholder thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, and the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant to the terms of, the Registration Statement. Very truly yours, By:[ISSUER'S COUNSEL] CC: [LIST NAMES OF HOLDERS]
Appears in 1 contract
Samples: Form of Registration Rights Agreement (Alliance Pharmaceutical Corp)
Purchasers. Name and Address Copy of Notice to: The Tail Wind Fund Ltd. c/o Tail Wind Advisory & Management Ltd. 00 Xxxx Xxxx Xxxxxx, XX0X 0XX, XX Fax: 000-00-000-000-0000 Email: xxxxxx@xxxxxxxxxx.xxx Xxxxx X. Xxxxxxx, P.C. 000 Xxxxxxx Xxxxxx Xxxxx 0000 Xxx Xxxx, XX 00000 Fax: 000-000-0000 Email: xxxxxxxx@xxxxxxxx.xxx Solomon Strategic Holdings, Inc. c/o Xxxxxx X. XxxXxxxxx Greenlands The Red Gap Xxxxxxxxxx, XX0 0XX, Xxxxxxx Xxxxx Fax: +000 (00) 0000 000000 Email: xxxxxxxxx_xxx@xxxx.xxx Xxxxx X. Xxxxxxx, P.C. 000 Xxxxxxx Xxxxxx Xxxxx 0000 Xxx Xxxx, XX 00000 Fax: 000-000-0000 Email: xxxxxxxx@xxxxxxxx.xxx EXHIBIT A PLAN OF DISTRIBUTION We are registering the shares of common stock on behalf of the selling security holders. Sales of shares may be made by selling security holders, including their respective donees, transferees, pledgees or other successors-in-interest directly to purchasers or to or through underwriters, broker-dealers or through agents. Sales may be made from time to time on any other exchange or market upon which our shares may trade in the future, in the over-the-counter market or otherwise, at market prices prevailing at the time of sale, at prices related to market prices, or at negotiated or fixed prices. The shares may be sold by one or more of, or a combination of, the following: • a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction (including crosses in which the same broker acts as agent for both sides of the transaction); • purchases by a broker-dealer as principal and resale by such broker-dealer, including resales for its account, pursuant to this prospectus; • ordinary brokerage transactions and transactions in which the broker solicits purchases; • through options, swaps or derivatives; • in privately negotiated transactions; • in making short sales entered into after the date of this prospectus or in transactions to cover such short sales; and • put or call option transactions relating to the shares. The selling security holders may effect these transactions by selling shares directly to purchasers or to or through broker-dealers, which may act as agents or principals. These broker-dealers may receive compensation in the form of discounts, concessions or commissions from the selling security holders and/or the purchasers of shares for whom such broker-dealers may act as agents or to whom they sell as principals, or both (which compensation as to a particular broker-dealer might be in excess of customary commissions). The selling security holders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their securities. The selling security holders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with those transactions, the broker-dealers or other financial institutions may engage in short sales of the shares or of securities convertible into or exchangeable for the shares in the course of hedging positions they assume with the selling security holders. The selling security holders may also enter into options or other transactions with broker-dealers or other financial institutions which require the delivery of shares offered by this prospectus to those broker-dealers or other financial institutions. The broker-dealer or other financial institution may then resell the shares pursuant to this prospectus (as amended or supplemented, if required by applicable law, to reflect those transactions). The selling security holders and any broker-dealers that act in connection with the sale of shares may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act of 1933, and any commissions received by broker-dealers or any profit on the resale of the shares sold by them while acting as principals may be deemed to be underwriting discounts or commissions under the Securities Act. The selling security holders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the shares against liabilities, including liabilities arising under the Securities Act. We have agreed to indemnify each of the selling security holders and each selling security holder has agreed, severally and not jointly, to indemnify us against some liabilities in connection with the offering of the shares, including liabilities arising under the Securities Act. The selling security holders will be subject to the prospectus delivery requirements of the Securities Act. We have informed the selling security holders that the anti-manipulative provisions of Regulation M promulgated under the Securities Exchange Act of 1934 may apply to their sales in the market. Selling security holders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided they meet the criteria and conform to the requirements of Rule 144. Upon being notified by a selling security holder that a material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus, if required pursuant to Rule 424(b) under the Securities Act, disclosing: • the name of each such selling security holder and of the participating broker-dealer(s); • the number of shares involved; • the initial price at which the shares were sold; • the commissions paid or discounts or concessions allowed to the broker-dealer(s), where applicable; • that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus; and • other facts material to the transactions. In addition, if required under applicable law or the rules or regulations of the Commission, we will file a supplement to this prospectus when a selling security holder notifies us that a donee or pledgee intends to sell more than 500 shares of common stock. We are paying all expenses and fees in connection with the registration of the shares. The selling security holders will bear all brokerage or underwriting discounts or commissions paid to broker-dealers in connection with the sale of the shares. EXHIBIT A FORM OF CONVERSION NOTICE (To be executed by the registered Holder in order to convert shares of Preferred Stock) The undersigned hereby irrevocably elects to convert the number of shares of Series F 10% Cumulative Convertible Preferred Stock (the “Preferred Stock”) indicated below into shares of common stock, par value $0.01 per share (the “Common Stock”), of Avatech Solutions, Inc., a Delaware corporation (the “Corporation”), according to the Certificate of Designation of the Preferred Stock and the conditions hereof, as of the date written below. The undersigned hereby requests that certificates for the shares of Common Stock to be issued to the undersigned pursuant to this Conversion Notice be issued in the name of, and delivered to, the undersigned or its designee as indicated below. If the shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Date of Conversion (Date of Notice) Number of shares of Preferred Stock owned prior to Conversion Number of shares of Preferred Stock to be Converted Stated Value (Liquidation Preference) of Preferred Stock to be Converted Amount of accumulated and unpaid dividends on shares of Preferred Stock to be Converted Number of shares of Common Stock to be Issued (including conversion of accrued but unpaid dividends on shares of Preferred Stock to be Converted) Applicable Conversion Value Number of shares of Preferred Stock owned subsequent to Conversion Conversion Information: NAME OF HOLDER: By:_____________________________ EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are registering the shares of common stock on behalf of the selling stockholders. The common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected at various times in one or more of the following transactions, or in other kinds of transactions: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. inter-dealer system of a registered national securities association on which the common stock and the warrants may be listed or quoted at the time of sale; o in the over-the-counter market; o in private transactions and transactions otherwise than on these exchanges or systems or in the over-the-counter market; o in connection with short sales of the shares; o by pledge to secure or in payment of debt and other obligations; o through the writing of options, whether the options are listed on an options exchange or otherwise; o in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or o through a combination of any of the above transactions. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, may sell the common stock directly to purchasers or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders or the purchasers. These discounts, concessions or commissions as to any particular underwriter, broker-dealer or agent may be in excess of those customary in the types of transactions involved. The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We entered into a registration rights agreement for the benefit of the selling stockholders to register the common stock under applicable federal and state securities laws. The registration rights agreement provides for cross-indemnification of the selling stockholders and us and our respective directors, officers and controlling persons against specific liabilities in connection with the offer and sale of the common stock, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting in connection with a proposed sale of shares of common stock by any selling stockholder. If we are notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus. If the selling stockholders use this prospectus for any sale of the shares of common stock, they will be subject to the prospectus delivery requirements of the Securities Act. The anti-manipulation rules of Regulation M under the Securities Exchange Act may apply to sales of our common stock and activities of the selling stockholders. EXHIBIT C --------- FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address of Transfer Agent] ----------------- ----------------- ----------------- Attn: Print Name:_______________________ Re: CytRx Corporation Ladies and Gentlemen: We are counsel to CytRx Corporation, a Delaware corporation (the "COMPANY"), and have represented the Company in connection with that certain Securities Purchase Agreement (the "PURCHASE AGREEMENT"), dated as of September 15, 2003, by and among the Company and the purchasers (the "PURCHASERS" and the "HOLDERS") named therein pursuant to which the Company issued to the Purchasers shares (the "SHARES") of its Common Stock, $0.001 par value. Pursuant to the Purchase Agreement, the Company has also entered into a Registration Rights Agreement with the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), dated as of September 15, 2003, pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), including the Shares, under the Securities Act of 1933, as amended (the "1933 ACT"). In connection with the Company's obligations under the Registration Rights Agreement, on Print Title:________________________ __, 2003, the Company filed a Registration Statement on Form S-3 (File No. 333-Print Address of Holder: Issue Common Stock to:________) (the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities which names the Holders as selling stockholders thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant to the terms of, the Registration Statement. Very truly yours, By:______________________________________
Appears in 1 contract
Purchasers. By:_____________________________ NAME AND ADDRESS COPY OF NOTICE TO: ---------------- ----------------- ----------------------------------------------- ---------------------------------------------- Xxxxxxx Xxxxxxx, Esq. BayStar Capital II, X.X. Xxxxxx and Xxxx LLP 000 Xxxxxxxx Xxxxxx c/o BayStar Capital Management, LLC Xxxxxxxx, XX 00000 00 Xxxxxx Xxxxxx, Xxxxx 000 Tel: 000-000-0000 Xxx Xxxxxxxxx, XX 00000 Fax: 000-000-0000 Attn: Xxxxx Xxxxx Email: XXXXXXXX@XXXXXX.XXX Tel: (000) 000-0000 Fax: (000) 000-0000 ----------------------------------------------- ---------------------------------------------- EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are registering the shares of common stock on behalf of the selling stockholderssecurity holders. The common stock Sales of shares may be sold made by selling security holders, including their respective donees, transferees, pledgees or other successors-in-interest directly to purchasers or to or through underwriters, broker-dealers or through agents. Sales may be made from time to time on the OTC Bulletin Board, any other exchange or market upon which our shares may trade in one the future, in the over-the-counter market or more transactions at fixed pricesotherwise, at prevailing market prices prevailing at the time of sale, at prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated or fixed prices. These sales The shares may be effected at various times in sold by one or more of, or a combination of, the following: - a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the following transactions, or block as principal to facilitate the transaction (including crosses in other kinds which the same broker acts as agent for both sides of transactions: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. intertransaction); - purchases by a broker-dealer system of a registered national securities association on which the common stock as principal and the warrants may be listed or quoted at the time of saleresale by such broker-dealer, including resales for its account, pursuant to this prospectus; o in the over-the-counter market; o in private - ordinary brokerage transactions and transactions otherwise than on these exchanges in which the broker solicits purchases; - through options, swaps or systems derivatives; - in privately negotiated transactions; - in making short sales or in the over-the-counter markettransactions to cover short sales; o in connection with short sales of and - put or call option transactions relating to the shares; o by pledge to secure or in payment of debt and other obligations; o through the writing of options, whether the options are listed on an options exchange or otherwise; o in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or o through a combination of any of the above transactions. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, security holders may sell the common stock effect these transactions by selling shares directly to purchasers or to or through underwritersbroker-dealers, which may act as agents or principals. These broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders security holders and/or the purchasers of shares for whom such broker-dealers may act as agents or the purchasers. These discountsto whom they sell as principals, concessions or commissions both (which compensation as to any a particular underwriter, broker-dealer or agent may might be in excess of those customary in the types of transactions involvedcommissions). The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We entered into a registration rights agreement for the benefit of the selling stockholders to register the common stock under applicable federal and state securities laws. The registration rights agreement provides for cross-indemnification of the selling stockholders and us and our respective directors, officers and controlling persons against specific liabilities in connection with the offer and sale of the common stock, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders holders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their securities. The selling security holders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with those transactions, the broker-dealers or other financial institutions may engage in short sales of the shares or of common stocksecurities convertible into or exchangeable for the shares in the course of hedging positions they assume with the selling security holders. The selling security holders may also enter into options or other transactions with broker-dealers or other financial institutions which require the delivery of shares offered by this prospectus to those broker-dealers or other financial institutions. The broker-dealer or other financial institution may then resell the shares pursuant to this prospectus (as amended or supplemented, nor is there an underwriter or coordinating broker acting if required by applicable law, to reflect those transactions). The selling security holders and any broker-dealers that act in connection with a proposed the sale of shares may be deemed to be "underwriters" within the meaning of common stock Section 2(11) of the Securities Act of 1933, and any commissions received by broker-dealers or any profit on the resale of the shares sold by them while acting as principals may be deemed to be underwriting discounts or commissions under the Securities Act. The selling stockholdersecurity holders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the shares against liabilities, including liabilities arising under the Securities Act. If we are We have agreed to indemnify each of the selling security holders and each selling security holder has agreed, severally and not jointly, to indemnify us against some liabilities in connection with the offering of the shares, including liabilities arising under the Securities Act. The selling security holders will be subject to the prospectus delivery requirements of the Securities Act. We have informed the selling security holders that the anti-manipulative provisions of Regulation M promulgated under the Securities Exchange Act of 1934 may apply to their sales in the market. Selling security holders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided they meet the criteria and conform to the requirements of Rule 144. Upon being notified by any a selling stockholder security holder that any a material arrangement has been entered into with a broker-dealer for the sale of shares of common stockthrough a block trade, if requiredspecial offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus, if required pursuant to Rule 424(b) under the Securities Act, disclosing: - the name of each such selling security holder and of the participating broker-dealer(s); - the number of shares involved; - the initial price at which the shares were sold; - the commissions paid or discounts or concessions allowed to the broker-dealer(s), where applicable; - that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus; and - other facts material to the transactions. If In addition, if required under applicable law or the selling stockholders use rules or regulations of the Commission, we will file a supplement to this prospectus for any sale of the when a selling security holder notifies us that a donee or pledgee intends to sell more than 500 shares of common stock, they will be subject to . We are paying all expenses and fees customarily paid by the prospectus delivery requirements issuer in connection with the registration of the Securities Actshares. The antiselling security holders will bear all brokerage or underwriting discounts or commissions paid to broker-manipulation rules of Regulation M under dealers in connection with the Securities Exchange Act may apply to sales of our common stock and activities sale of the selling stockholdersshares. EXHIBIT C --------- B FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address Address of Transfer Agent] ----------------- ----------------- ----------------- AttnRe: Critical Home Care, Inc. Dear [____________ Re: CytRx Corporation Ladies and Gentlemen]: We are counsel to CytRx CorporationCritical Home Care, Inc., a Delaware Nevada corporation (the "COMPANYCompany"), and have represented the Company in connection with that certain Securities Promissory Note and Warrant Purchase Agreement (the "PURCHASE AGREEMENTPurchase Agreement"), ) dated as of September 1521, 2003, 2004 by and among the Company and the purchasers buyers named therein (collectively, the "PURCHASERS" and the "HOLDERSHolders") named therein pursuant to which the Company issued to the Purchasers Holders shares (the "SHARES") of its Common Stock, par value $0.001 par valueper share (the "Common Stock"), and warrants to purchase shares of the Common Stock (the "Warrants"). Pursuant to the Purchase Agreement, the Company has also entered into a Registration an Investor Rights Agreement with the Purchasers Holders (the "REGISTRATION RIGHTS AGREEMENTInvestor Rights Agreement"), dated as of September 15, 2003, ) pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in shares of Common Stock issued pursuant to the Registration Rights Agreement), including Purchase Agreement and the SharesCommon Stock issuable upon exercise of the Warrants, under the Securities Act of 1933, as amended (the "1933 ACTAct"). In connection with the Company's obligations under the Registration Investor Rights Agreement, on ____________ ___, 20032004, the Company filed a Registration Statement on Form S-3 S-__ (File No. 333-_____________) (the "REGISTRATION STATEMENTRegistration Statement") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities which names each of the Holders as a selling stockholders securityholder thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, and the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant to the terms of, the Registration Statement. Very truly yours, By:__________________________________ cc: [LIST NAMES OF HOLDERS]
Appears in 1 contract
Purchasers. By:_____________________________ Name and Address Copy of Notice to: -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are registering the shares of common stock on behalf of the selling stockholderssecurity holders. The common stock Sales of shares may be sold made by selling security holders, including their respective donees, transferees, pledgees or other successors-in-interest directly to purchasers or to or through underwriters, broker-dealers or through agents. Sales may be made from time to time on the OTC Bulletin Board, any other exchange or market upon which our shares may trade in one the future, in the over-the-counter market or more transactions at fixed pricesotherwise, at prevailing market prices prevailing at the time of sale, at prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated or fixed prices. These sales The shares may be effected at various times in sold by one or more of, or a combination of, the following: - a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the following transactions, or block as principal to facilitate the transaction (including crosses in other kinds which the same broker acts as agent for both sides of transactions: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. intertransaction); - purchases by a broker-dealer system of a registered national securities association on which the common stock as principal and the warrants may be listed or quoted at the time of saleresale by such broker-dealer, including resales for its account, pursuant to this prospectus; o in the over-the-counter market; o in private - ordinary brokerage transactions and transactions otherwise than on these exchanges in which the broker solicits purchases; - through options, swaps or systems derivatives; - in privately negotiated transactions; - in making short sales or in the over-the-counter markettransactions to cover short sales; o in connection with short sales of and - put or call option transactions relating to the shares; o by pledge to secure or in payment of debt and other obligations; o through the writing of options, whether the options are listed on an options exchange or otherwise; o in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or o through a combination of any of the above transactions. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, security holders may sell the common stock effect these transactions by selling shares directly to purchasers or to or through underwritersbroker-dealers, which may act as agents or principals. These broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders security holders and/or the purchasers of shares for whom such broker-dealers may act as agents or the purchasers. These discountsto whom they sell as principals, concessions or commissions both (which compensation as to any a particular underwriter, broker-dealer or agent may might be in excess of those customary in the types of transactions involvedcommissions). The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We entered into a registration rights agreement for the benefit of the selling stockholders to register the common stock under applicable federal and state securities laws. The registration rights agreement provides for cross-indemnification of the selling stockholders and us and our respective directors, officers and controlling persons against specific liabilities in connection with the offer and sale of the common stock, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders holders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their securities. The selling security holders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with those transactions, the broker-dealers or other financial institutions may engage in short sales of the shares or of common stocksecurities convertible into or exchangeable for the shares in the course of hedging positions they assume with the selling security holders. The selling security holders may also enter into options or other transactions with broker-dealers or other financial institutions which require the delivery of shares offered by this prospectus to those broker-dealers or other financial institutions. The broker-dealer or other financial institution may then resell the shares pursuant to this prospectus (as amended or supplemented, nor is there an underwriter or coordinating broker acting if required by applicable law, to reflect those transactions). The selling security holders and any broker-dealers that act in connection with a proposed the sale of shares may be deemed to be "underwriters" within the meaning of common stock Section 2(11) of the Securities Act of 1933, and any commissions received by broker-dealers or any profit on the resale of the shares sold by them while acting as principals may be deemed to be underwriting discounts or commissions under the Securities Act. The selling stockholdersecurity holders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the shares against liabilities, including liabilities arising under the Securities Act. If we are We have agreed to indemnify each of the selling security holders and each selling security holder has agreed, severally and not jointly, to indemnify us against some liabilities in connection with the offering of the shares, including liabilities arising under the Securities Act. The selling security holders will be subject to the prospectus delivery requirements of the Securities Act. We have informed the selling security holders that the anti-manipulative provisions of Regulation M promulgated under the Securities Exchange Act of 1934 may apply to their sales in the market. Selling security holders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided they meet the criteria and conform to the requirements of Rule 144. Upon being notified by any a selling stockholder security holder that any a material arrangement has been entered into with a broker-dealer for the sale of shares of common stockthrough a block trade, if requiredspecial offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a supplement to this prospectus, if required pursuant to Rule 424(b) under the Securities Act, disclosing: - the name of each such selling security holder and of the participating broker-dealer(s); - the number of shares involved; - the initial price at which the shares were sold; - the commissions paid or discounts or concessions allowed to the broker-dealer(s), where applicable; - that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus; and - other facts material to the transactions. If In addition, if required under applicable law or the selling stockholders use rules or regulations of the Commission, we will file a supplement to this prospectus for any sale of the when a selling security holder notifies us that a donee or pledgee intends to sell more than 500 shares of common stock, they will be subject to . We are paying all expenses and fees customarily paid by the prospectus delivery requirements issuer in connection with the registration of the Securities Actshares. The antiselling security holders will bear all brokerage or underwriting discounts or commissions paid to broker-manipulation rules of Regulation M under dealers in connection with the Securities Exchange Act may apply to sales of our common stock and activities sale of the selling stockholdersshares. EXHIBIT C --------- B FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address Address of Transfer Agent] ----------------- ----------------- ----------------- AttnRe: Somanta Pharmaceuticals, Inc. Dear [____________ Re: CytRx Corporation Ladies and Gentlemen]: We are counsel to CytRx CorporationSomanta Pharmaceuticals, Inc., a Delaware corporation (the "COMPANYCompany"), and have represented the Company in connection with that certain Securities Preferred Stock and Warrant Purchase Agreement (the "PURCHASE AGREEMENTPurchase Agreement"), ) dated as of September 15__________________, 2003, 2005 by and among the Company and the purchasers buyers named therein (collectively, the "PURCHASERS" and the "HOLDERSHolders") named therein pursuant to which the Company issued to the Purchasers Holders shares of its Series A Convertible Preferred Stock, par value $0.001 per share (the "SHARESPreferred Stock") of its ), convertible into the Company's Common Stock, par value $0.001 par valueper share (the "Common Stock"), and warrants to purchase shares of the Common Stock (the "Warrants"). Pursuant to the Purchase Agreement, the Company has also entered into a Registration an Investor Rights Agreement with the Purchasers Holders (the "REGISTRATION RIGHTS AGREEMENTInvestor Rights Agreement"), dated as of September 15, 2003, ) pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in shares of Common Stock issuable upon conversion of the Registration Rights Agreement), including Preferred Stock and upon exercise of the SharesWarrants, under the Securities Act of 1933, as amended (the "1933 ACTAct"). In connection with the Company's obligations under the Registration Investor Rights Agreement, on ____________ ___, 20032005, the Company filed a Registration Statement on Form S-3 S-__ (File No. 333-_____________) (the "REGISTRATION STATEMENTRegistration Statement") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities (as defined in the Investor Rights Agreement) which names each of the Holders as a selling stockholders securityholder thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, and the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant to the terms of, the Registration Statement. Very truly yours, By:,
Appears in 1 contract
Samples: Investor Rights Agreement (Somanta Pharmaceuticals Inc.)
Purchasers. JGB (CAYMAN) PORT XXXXX LTD. By:_____________________________ : /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: President Dated: October 12, 2021 SCHEDULE OF PURCHASERS Purchaser Purchaser Address and E-mail Purchaser’s Representative’s Address and E-mail JGB (Cayman) Port Xxxxx Ltd. SCHEDULE OF PURCHASERS EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are registering the shares of common stock Common Stock covered by this prospectus on behalf of the selling stockholdersshareholders, to permit the resale of these shares of Common Stock by the selling shareholders from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling shareholders of the shares of Common Stock. We will bear all fees and expenses incident to our obligation to register the shares of Common Stock. The common stock selling shareholders may sell all or a portion of the shares of Common Stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of Common Stock are sold through underwriters or broker-dealers, the selling shareholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of Common Stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected at various times in one or more of the following transactions, which may involve crosses or in other kinds of block transactions: o transactions on the NASDAQ Stock Market or , • on any national securities exchange or U.S. inter-dealer system of a registered national securities association quotation service on which the common stock and the warrants securities may be listed or quoted at the time of sale; o • in the over-the-counter market; o • in private transactions and transactions otherwise than on these exchanges or systems or in the over-the-counter market; o in connection with short sales of the shares; o by pledge to secure or in payment of debt and other obligations; o • through the writing of options, whether the such options are listed on an options exchange or otherwise; o • ordinary brokerage transactions and transactions in connection which the broker-dealer solicits purchasers; • block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; • purchases by a broker-dealer as principal and resale by the broker-dealer for its account; • an exchange distribution in accordance with the writing rules of nonthe applicable exchange • privately negotiated transactions; • short sales; • sales pursuant to Rule 144 under the Securities Act of 1933, as amended; • broker-traded and exchange-traded call options, in hedge transactions and in settlement dealers may agree with the selling security holders to sell a specified number of other transactions in standardized or over-the-counter optionssuch shares at a stipulated price per share; or o through • a combination of any such methods of sale; and • any other method permitted pursuant to applicable law. If the above transactions. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, may sell the common stock directly shareholders effect such transactions by selling shares of Common Stock to purchasers or through underwriters, broker-dealers or agents, who such underwriters, broker-dealers or agents may receive compensation commissions in the form of discounts, concessions or commissions from the selling stockholders shareholders or commissions from purchasers of the purchasers. These shares of Common Stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to any particular underwriterunderwriters, broker-dealer dealers or agent agents may be in excess of those customary in the types of transactions involved). The Underwriters, broker-dealers or agents who may become involved in the sale of shares of Common Stock may engage in transactions with, and perform other services for, us in the ordinary course of their business for which they receive compensation. In connection with sales of the shares of Common Stock or otherwise, the selling stockholders also shareholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales against of the box, puts shares of Common Stock in the course of hedging in positions they assume. The selling shareholders may also sell shares of Common Stock short and calls deliver shares of Common Stock covered by this prospectus to close out short positions and other transactions in our securities or derivatives of our securities and may sell or deliver to return borrowed shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectussuch short sales. The selling stockholders shareholders may from time also loan or pledge shares of Common Stock to time broker-dealers that in turn may sell such shares. The selling shareholders may pledge or grant a security interest in some or all of the shares of common stock Common Stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock Common Stock from time to time under pursuant to this prospectus after we have filed an or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending of 1933, as amended, amending, if necessary, the list of selling stockholders shareholders to include the pledgee, transferee or other successors in interest as selling stockholders shareholders under this prospectus. The selling stockholders shareholders also may transfer and donate the shares of common stock Common Stock in other circumstances, circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell prospectus. Any broker-dealers participating in the distribution of the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders and any broker-dealers or agents that are involved in selling the shares of common stock Common Stock may be deemed to be "“underwriters" ” within the meaning of the Securities Act in connection with such sales. In such eventAct, and any commission paid, or any discounts or concessions allowed to, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of Common Stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of Common Stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling shareholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers. Under the securities laws of some states, the shares of Common Stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of Common Stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with. There can be no assurance that any selling shareholder will sell any or all of the shares of Common Stock registered pursuant to the shelf registration statement, of which this prospectus forms a part. The selling shareholders and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of Common Stock by the selling shareholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of Common Stock to engage in market-making activities with respect to the shares of Common Stock. All of the foregoing may affect the marketability of the shares of Common Stock and the ability of any person or entity to engage in market-making activities with respect to the shares of Common Stock. We entered into a will pay all expenses of the registration of the shares of Common Stock pursuant to the registration rights agreement for the benefit agreement, estimated to be [ ] in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that a selling shareholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders to register shareholders against liabilities, including some liabilities under the common stock under applicable federal and state securities laws. The Securities Act, in accordance with the registration rights agreement provides for cross-indemnification of agreements, or the selling stockholders and us and our respective directors, officers and controlling persons shareholders will be entitled to contribution. We may be indemnified by the selling shareholders against specific liabilities in connection with the offer and sale of the common stockcivil liabilities, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred , that may arise from any written information furnished to us by the selling stockholders incident to the registration of the common stock. The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting shareholder specifically for use in connection with a proposed sale of shares of common stock by any selling stockholder. If we are notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus. If the selling stockholders use this prospectus for any sale of the shares of common stock, they will be subject to the prospectus delivery requirements of the Securities Act. The anti-manipulation rules of Regulation M under the Securities Exchange Act may apply to sales of our common stock and activities of the selling stockholders. EXHIBIT C --------- FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address of Transfer Agent] ----------------- ----------------- ----------------- Attn: ____________ Re: CytRx Corporation Ladies and Gentlemen: We are counsel to CytRx Corporation, a Delaware corporation (the "COMPANY"), and have represented the Company in connection with that certain Securities Purchase Agreement (the "PURCHASE AGREEMENT"), dated as of September 15, 2003, by and among the Company and the purchasers (the "PURCHASERS" and the "HOLDERS") named therein pursuant to which the Company issued to the Purchasers shares (the "SHARES") of its Common Stock, $0.001 par value. Pursuant to the Purchase Agreement, the Company has also entered into a Registration Rights Agreement accordance with the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), dated as of September 15, 2003, pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), including the Shares, under the Securities Act of 1933, as amended (the "1933 ACT"). In connection with the Company's obligations under the Registration Rights Agreement, on _________ __, 2003, the Company filed a Registration Statement on Form S-3 (File No. 333-________) (the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities which names the Holders as selling stockholders thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending beforerelated registration rights agreement, or threatened by, the SEC and, accordingly, the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant we may be entitled to the terms of, the Registration Statement. Very truly yours, By:contribution.
Appears in 1 contract
Purchasers. NORDIC BIOTECH OPPORTUNITY FUND K/S By:_____________________________ : /s/ Xxxxxxxxx Xxxxxx Name: X. Xxxxxx Title: Partner By: /s/ Xxxxxxxxx Xxxxxx Name: for X. Xxxxxxxxxxxx by POA Title: Partner EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are registering the The shares of common stock on behalf of the offered by this prospectus are being offered by selling stockholdersstockholders and their donees, pledgees, transferees or other successors-in-interest. The common stock may be sold sold, transferred or otherwise disposed of on any stock exchange, the OTC Bulletin Board or any other market or trading facility on which the shares are traded or in one or more transactions private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market pricesprice, at varying prices determined at the time of sale, or at negotiated prices. These sales The selling stockholders may be effected at various times in use any one or more of the following transactions, methods when disposing of shares or in other kinds of transactionsinterests therein: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. inter-dealer system of a registered national securities association on which the common stock and the warrants may be listed or quoted at the time of sale; o in the over-the-counter market; o in private • ordinary brokerage transactions and transactions otherwise than on these exchanges in which the broker-dealer solicits purchasers; • block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; • through brokers, dealers or systems or underwriters who may act solely as agents; • purchases by a broker-dealer as principal and resale by the broker-dealer for its account; • an exchange distribution in accordance with the over-the-counter marketrules of the applicable exchange; o in connection with • privately negotiated transactions; • short sales effected after the date the registration statement of which this Prospectus is a part is declared effective by the sharesSEC; o by pledge to secure or in payment of debt and other obligations; o • through the writing or settlement of optionsoptions or other hedging transactions, whether the options are listed on through an options exchange or otherwise; o in connection • broker-dealers may agree with the writing selling stockholders to sell a specified number of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter optionssuch shares at a stipulated price per share; or o through • a combination of any such methods of the above transactionssale. The selling stockholders and their successorsmay, including their transferees, pledgees or donees or their successors, may sell the common stock directly to purchasers or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders or the purchasers. These discounts, concessions or commissions as to any particular underwriter, broker-dealer or agent may be in excess of those customary in the types of transactions involved. The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders may from time to time time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock stock, from time to time time, under this prospectus after we have filed prospectus, or under an amendment or supplement to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus prospectus. In connection with the sale of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). Brokers, dealers, underwriters or agents participating in the distribution of the common stock as agents may receive compensation in the form of commissions, discounts or concessions from the selling stockholders and/or purchasers of the common stock for whom the broker-dealers may act as agents. The compensation paid to a particular broker-dealer may be less than or in excess of customary concessions, but except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with NASDR Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with NASDR IM-2440. In no event shall any broker-dealer receive fees, commissions and markups that, in the aggregate, would exceed eight percent (8%). At the time a particular offer of shares of common stock is made, a prospectus supplement will be distributed that will set forth the names of any agents, underwriters or dealers, any compensation from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include and any other required information. Neither we nor the pledgee, transferee or other successors in interest as selling stockholders under this prospectuscan presently estimate the amount of compensation that any agent will receive. We know of no existing arrangements between the selling stockholders, any other stockholders, broker, dealer, underwriter or agent relating to the sale or distribution of our common stock. The selling stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act of 1933, provided that they meet the criteria and any conform to the requirements of that rule. Any selling stockholder who is a registered broker-dealers or agents that are involved in selling the shares of common stock may dealer will be deemed to be "underwriters" an underwriter. Each of [ ] and [ ] are broker dealers or broker dealer affiliates. Each of [ ] and [ ] and entities associated with or controlled by these entities are underwriters within the meaning of the Securities Act in connection with such salesthe sale of securities under this prospectus. In such eventaddition, each of the other selling stockholders may be deemed to be underwriters within the meaning of the Securities Act of 1933. See “Selling Stockholders.” Any profits on the sale of the common stock sold under this prospectus by selling stockholders who are or who are deemed to be underwriters, and any discount, commissions or agent’s commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them selling stockholders may be deemed to be underwriting discounts and commissions or discounts under the Securities Act. We entered into a registration rights agreement for the benefit of Because the selling stockholders are or may be deemed to register the common stock under applicable federal and state securities laws. The registration rights agreement provides for cross-indemnification of be underwriters, the selling stockholders and us and our respective directors, officers and controlling persons against specific liabilities in connection with the offer and sale of the common stock, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting in connection with a proposed sale of shares of common stock by any selling stockholder. If we are notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus. If the selling stockholders use this prospectus for any sale of the shares of common stock, they will be subject to the prospectus delivery requirements of the Securities Act, including Rule 172 thereunder. The anti-manipulation rules Underwriters are subject to certain statutory liabilities, including but not limited to, Section 11, 12 and 17 of Regulation M under the Securities Exchange Act may apply Act. We are also required to sales pay certain fees and expenses incurred by us incidental to the registration of the shares of common stock. To the extent required, the shares of our common stock and activities to be sold, the names of the selling stockholders. EXHIBIT C --------- FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name , the respective purchase prices and address public offering prices, the names of Transfer Agent] ----------------- ----------------- ----------------- Attn: ____________ Re: CytRx Corporation Ladies and Gentlemen: We are counsel any agents, dealer or underwriter, any applicable commissions or discounts with respect to CytRx Corporationa particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a Delaware corporation (the "COMPANY"), and have represented the Company in connection with that certain Securities Purchase Agreement (the "PURCHASE AGREEMENT"), dated as of September 15, 2003, by and among the Company and the purchasers (the "PURCHASERS" and the "HOLDERS") named therein pursuant to which the Company issued post-effective amendment to the Purchasers shares (registration statement that includes this prospectus. In order to comply with the "SHARES") securities laws of its Common Stocksome states, $0.001 par valueif applicable, the common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. Pursuant In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with. Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the securities offered under this prospectus may not simultaneously engage in market making activities with respect to the Purchase Agreementcommon stock for the applicable restricted period, the Company has also entered into a Registration Rights Agreement with the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), dated as of September 15, 2003, pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in Regulation M, prior to the Registration Rights Agreement)commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the Sharestiming of purchases and sales of shares of the common stock by the selling stockholders or any other person. We intend to make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale. We have agreed to indemnify the selling stockholders against liabilities, including liabilities under the Securities Act of 1933and state securities laws, as amended (the "1933 ACT"). In connection with the Company's obligations under the Registration Rights Agreement, on _________ __, 2003, the Company filed a Registration Statement on Form S-3 (File No. 333-________) (the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the "SEC") relating to the resale registration of the Registrable Securities shares offered by this prospectus. We have agreed to keep the registration statement of which names this prospectus constitutes a part effective until the Holders earlier of (1) such time as selling stockholders thereunder. In connection with the foregoing, we advise you that a member all of the SEC's staff has advised us shares covered by telephone that this prospectus have been disposed of or (2) the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] date on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member which all of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and shares may be sold without volume limitations pursuant to Rule 144 of the terms of, the Registration Statement. Very truly yours, By:Securities Act.
Appears in 1 contract
Purchasers. s/ Xxxx X. Xxxxxxx -------------------------------------------------- By:_____________________________ : Xxxx X. Xxxxxxx ---------------------------------------------- Title: INDIVIDUAL ------------------------------------------- SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT EXHIBIT A --------- PURCHASERS EXHIBIT B PLAN OF DISTRIBUTION We are registering the The selling security holders and any of their pledgees, donees, assignees and successors-in-interest may, from time to time, sell any or all of their shares of common stock being offered under this prospectus on behalf any stock exchange, market or trading facility on which shares of the selling stockholders. The our common stock may be sold are traded or in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market prices, at varying prices determined at the time of sale, or at negotiated pricesprivate transactions. These sales may be effected at various times in fixed or negotiated prices. The selling security holders may use any one or more of the following transactions, or in other kinds methods when disposing of transactionsshares: o transactions on the NASDAQ Stock Market or on any national securities exchange or U.S. inter-dealer system of a registered national securities association on which the common stock and the warrants may be listed or quoted at the time of sale; o in the over-the-counter market; o in private - ordinary brokerage transactions and transactions otherwise than on these exchanges or systems or in which the overbroker-thedealer solicits purchasers; - block trades in which the broker-counter market; o in connection with short sales dealer will attempt to sell the shares as agent but may position and resell a portion of the sharesblock as principal to facilitate the transaction; o - purchases by pledge to secure or a broker-dealer as principal and resales by the broker-dealer for its account; - an exchange distribution in payment of debt and other obligations; o through the writing of options, whether the options are listed on an options exchange or otherwise; o in connection accordance with the writing rules of nonthe applicable exchange; - privately negotiated transactions; - broker-traded and exchange-traded call options, in hedge transactions and in settlement dealers may agree with the selling security holders to sell a specified number of other transactions in standardized or over-the-counter optionssuch shares at a stipulated price per share; or o through - a combination of any of the above transactionsthese methods of sale; and o any other method permitted pursuant to applicable law. The selling stockholders and their successors, including their transferees, pledgees or donees or their successors, shares may sell the common stock directly to purchasers or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions from the selling stockholders or the purchasers. These discounts, concessions or commissions as to any particular underwriter, broker-dealer or agent may be in excess of those customary in the types of transactions involved. The selling stockholders also may engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee1933, transferee or other successors in interest as selling stockholders amended ("Securities Act"), if available, rather than under this prospectus. The selling stockholders also security holders have the sole and absolute discretion not to accept any purchase offer or make any sale of shares if they deem the purchase price to be unsatisfactory at any particular time. The selling security holders may transfer pledge their shares to their brokers under the shares margin provisions of common stock in other circumstancescustomer agreements. If a selling security holder defaults on a margin loan, in which case the transfereesbroker may, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment time, offer and sell the pledged shares. Broker-dealers engaged by the selling security holders may arrange for other broker-dealers to this prospectus under Rule 424(b)(3participate in sales. Broker-dealers may receive commissions or discounts from the selling security holders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated, which commissions as to a particular broker or other dealer may be in excess of customary commissions to the extent permitted by applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectuslaw. The selling stockholders security holders and any broker-dealers or agents that are involved in selling the shares of common stock offered under this prospectus may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such these sales. In such event, any commissions Commissions received by such these broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. We entered into a registration rights agreement for Any broker-dealers or agents that are deemed to be underwriters may not sell shares offered under this prospectus unless and until we set forth the benefit names of the selling stockholders underwriters and the material details of their underwriting arrangements in a supplement to register this prospectus or, if required, in a replacement prospectus included in a post-effective amendment to the common stock under applicable federal registration statement of which this prospectus is a part. We have agreed to pay all fees and state securities laws. The expenses we incur incident to the registration rights agreement provides for cross-indemnification of the shares being offered under this prospectus. However, each selling stockholders security holder and us purchaser is responsible for paying any discounts, commissions and our respective directorssimilar selling expenses they incur. We and the selling security holders have agreed to indemnify one another against certain losses, officers damages and controlling persons against specific liabilities arising in connection with the offer and sale of the common stockthis prospectus, including liabilities under the Securities Act. We will pay substantially all of the expenses incurred by the selling stockholders incident to the registration of the common stock. The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their shares of common stock, nor is there an underwriter or coordinating broker acting in connection with a proposed sale of shares of common stock by any selling stockholder. If we are notified by any selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares of common stock, if required, we will file a supplement to this prospectus. If the selling stockholders use this prospectus for any sale of the shares of common stock, they will be subject to the prospectus delivery requirements of the Securities Act. The anti-manipulation rules of Regulation M under the Securities Exchange Act may apply to sales of our common stock and activities of the selling stockholders. EXHIBIT C --------- FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Name and address of Transfer Agent] ----------------- ----------------- ----------------- Attn: ____________ Re: CytRx Corporation Ladies and Gentlemen: We are counsel to CytRx Corporation, a Delaware corporation (the "COMPANY"), and have represented the Company in connection with that certain Securities Purchase Agreement (the "PURCHASE AGREEMENT"), dated as of September 15, 2003, by and among the Company and the purchasers (the "PURCHASERS" and the "HOLDERS") named therein pursuant to which the Company issued to the Purchasers shares (the "SHARES") of its Common Stock, $0.001 par value. Pursuant to the Purchase Agreement, the Company has also entered into a Registration Rights Agreement with the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), dated as of September 15, 2003, pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), including the Shares, under the Securities Act of 1933, as amended (the "1933 ACT"). In connection with the Company's obligations under the Registration Rights Agreement, on _________ __, 2003, the Company filed a Registration Statement on Form S-3 (File No. 333-________) (the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the "SEC") relating to the resale of the Registrable Securities which names the Holders as selling stockholders thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and, accordingly, the Registrable Securities are available for resale under the 1933 Act in the manner specified in, and pursuant to the terms of, the Registration Statement. Very truly yours, By:.
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