Exhibit 4.1


 


CYTRX
CORPORATION


 


and


 


AMERICAN
STOCK TRANSFER & TRUST COMPANY, LLC,


 


as
Rights Agent


 


AMENDED
AND RESTATED RIGHTS AGREEMENT


 


dated
as of November 16, 2020


 




    	 	 	 



    	 



    

 


TABLE
OF CONTENTS


 


	 	 	Page
	 	 	 
	Section
    1.	Certain
    Definitions.	1
	Section
    2.	Appointment
    of Rights Agent.	11
	Section
    3.	Issue
    of Rights Certificates.	11
	Section
    4.	Form
    of Rights Certificate.	13
	Section
    5.	Countersignature
    and Registration.	14
	Section
    6.	Transfer,
    Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.	15
	Section
    7.	Exercise
    of Rights; Purchase Price; Expiration Date of Rights.	16
	Section
    8.	Cancellation
    and Destruction of Rights Certificates.	18
	Section
    9.	Reservation
    and Availability of Capital Stock.	19
	Section
    10.	Preferred
    Stock Record Date.	20
	Section
    11.	Adjustment
    of Purchase Price, Number and Kind of Shares or Number of Rights.	21
	Section
    12.	Certificate
    of Adjusted Purchase Price or Number of Shares.	27
	Section
    13.	Consolidation,
    Merger or Sale or Transfer of Assets or Earning Power.	28
	Section
    14.	Fractional
    Rights; Fractional Shares; Waiver.	32
	Section
    15.	Rights
    of Action.	33
	Section
    16.	Agreement
    of Rights Holders.	33
	Section
    17.	Rights
    Certificate Holder Not Deemed a Stockholder.	34
	Section
    18.	Duties
    of Rights Agent.	34
	Section
    19.	Concerning
    the Rights Agent.	37
	Section
    20.	Merger
    or Consolidation or Change of Name of Rights Agent.	37
	Section
    21.	Change
    of Rights Agent.	38
	Section
    22.	Issuance
    of New Rights Certificates.	39
	Section
    23.	Redemption.	39
	Section
    24.	Exchange.	40
	Section
    25.	Process
    to Seek Exemption.	42
	Section
    26.	Notice
    of Certain Events.	43
	Section
    27.	Notices.	44
	Section
    28.	Supplements
    and Amendments.	45
	Section
    29.	Successors.	45
	Section
    30.	Determinations
    and Actions by the Board.	46
	Section
    31.	Benefits
    of this Agreement.	46
	Section
    32.	Severability.	46
	Section
    33.	Governing
    Law.	47
	Section
    34.	Counterparts.	47
	Section
    35.	Descriptive
    Headings.	47
	Section
    36.	Force
    Majeure.	47
	Section
    37.	Tax
    Compliance and Withholding.	47


 


EXHIBITS


 


	Exhibit
    A	Amended
    and Restated Certificate of Designation of Series B Junior Participating Preferred Stock of CytRx Corporation
	 	 
	Exhibit
    B	Amended
    and Restated Summary of Rights
	 	 
	Exhibit
    C	Form
    of Rights Certificate


 




    	i



     


    

 


AMENDED
AND RESTATED RIGHTS AGREEMENT


 


This
AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of November 16, 2020 (this “Agreement”), is made and
entered into by and between CytRx Corporation, a Delaware corporation (the “Company”), and American
Stock Transfer & Trust Company, LLC, as rights agent (the “Rights Agent”).


 


WHEREAS,
on December 13, 2019 (the “Rights Dividend Declaration Date”), the Board of Directors of the Company
(the “Board”) adopted the Rights Agreement dated as of December 13, 2019 by and between the Company
and the Rights Agent (the “Original Agreement”);


 


WHEREAS,
pursuant to Section 27 of the Original Agreement, the Company and the Rights Agent desire to amend and restate the Original Agreement
in its entirety with this Agreement;


 


WHEREAS,
(a) the Company has generated certain Tax Benefits (as hereinafter defined) for U.S. federal and state income tax purposes, (b)
the Company desires to avoid an “ownership change” within the meaning of Section 382 of the Internal Revenue Code
of 1986, as amended (the “Code”), and thereby preserve the Company’s ability to utilize such Tax
Benefits, (c) the Company views its Tax Benefits as a valuable asset of the Company, (d) the Company believes it is in the best
interests of the Company and its stockholders that the Company provide for the protection of the Tax Benefits on the terms and
conditions set forth in this Agreement and (e) in furtherance of such objective, the Company desires to amend and restate the
Original Agreement in its entirety with this Agreement; and


 


WHEREAS,
the Board previously authorized and declared a dividend on the Rights Dividend Declaration Date of one preferred share purchase
right (a “Right”) for each share of Common Stock (as hereinafter defined) of the Company outstanding
at the Close of Business (as hereinafter defined) on the Record Date (as hereinafter defined), each Right initially representing
the right to purchase one one-thousandth (subject to adjustment) of one share of Preferred Stock (as hereinafter defined), upon
the terms and subject to the conditions herein set forth, and further authorized and directed the issuance of one Right (subject
to adjustment) with respect to each share of Common Stock of the Company that will become outstanding between the Record Date
and the earlier of the Distribution Date and the Expiration Date (as such terms are hereinafter defined); provided, however,
that Rights may be issued with respect to shares of Common Stock that will become outstanding after the Distribution Date and
prior to the Expiration Date in accordance with Section 22 hereof.


 


NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:


 


	Section
    1.	Certain
    Definitions.


 


For
purposes of this Agreement, the following terms have the meanings indicated:


 


(a)
“Acquiring Person” shall mean any Person that, together with all of its Related Persons, is the Beneficial
Owner of 4.95% or more of the shares of Common Stock of the Company then-outstanding, but shall not include (i) any Excluded Persons,
(ii) any Exempt Persons and (iii) any Grandfathered Persons.


 




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Notwithstanding
anything in this Agreement to the contrary, no Person shall become an “Acquiring Person”:


 


(i)
as the result of an acquisition of shares of Common Stock by the Company which, by reducing the number of shares of Common Stock
outstanding, increases the percentage of the shares of Common Stock Beneficially Owned by such Person, together with all of its
Related Persons, to 4.95% or more of the shares of Common Stock of the Company then-outstanding; provided, however,
that if a Person, together with all of its Related Persons, becomes the Beneficial Owner of 4.95% or more of the shares of Common
Stock of the Company then-outstanding by reason of share acquisitions by the Company and, after such share acquisitions by the
Company, becomes the Beneficial Owner of any additional shares of Common Stock of the Company (other than pursuant to a dividend
or distribution paid or made by the Company on the outstanding Common Stock or pursuant to a split or subdivision of the outstanding
Common Stock or pursuant to a grant or exercise described in Section 1(a)(ii) below), then such Person shall be deemed to be an
“Acquiring Person” unless, upon becoming the Beneficial Owner of such additional shares of Common Stock, such Person,
together with all of its Related Persons, does not Beneficially Own 4.95% or more of the Common Stock then-outstanding;


 


(ii)
solely as a result of any unilateral grant of any security by the Company, or through the exercise of any options, warrants, rights
or similar interests (including restricted stock) granted by the Company to its directors, officers and employees; provided,
however, that if a Person, together with all of its Related Persons, becomes the Beneficial Owner of 4.95% or more of the
shares of Common Stock of the Company then-outstanding by reason of a unilateral grant of a security by the Company, or through
the exercise of any options, warrants, rights or similar interests (including restricted stock) granted by the Company to its
directors, officers and employees, then such Person shall nevertheless be deemed to be an “Acquiring Person” if such
Person, together with all of its Related Persons, thereafter becomes the Beneficial Owner of any additional shares of Common Stock
(unless upon becoming the Beneficial Owner of additional shares of Common Stock, such Person, together with all of its Related
Persons, does not Beneficially Own 4.95% or more of the Common Stock then-outstanding), except as a result of (A) a dividend or
distribution paid or made by the Company on the outstanding Common Stock or a split or subdivision of the outstanding Common Stock;
or (B) a grant or exercise described in this Section 1(a)(ii);


 


(iii)
by means of share purchases directly from or issuances (including debt-for-equity exchanges) directly by the Company, or in either
case indirectly through an underwritten offering by the Company, in a transaction approved by the Board; provided, however,
that a Person shall be deemed to be an “Acquiring Person” if such Person (A) is or becomes the Beneficial Owner of
4.95% or more of the shares of Common Stock then-outstanding following such transaction and (B) subsequently becomes the Beneficial
Owner of any additional shares of Common Stock (other than pursuant to a dividend or distribution paid or made by the Company
on the outstanding Common Stock or pursuant to a split or subdivision of the outstanding Common Stock or pursuant to a grant or
exercise described in Section 1(a)(ii) above) without the prior written consent of the Company and then Beneficially Owns 4.95%
or more of the shares of Common Stock then-outstanding;


 




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(iv)
if (A) the Board determines in good faith that such Person has become an “Acquiring Person” inadvertently (including,
without limitation, because (1) such Person was unaware that it Beneficially Owned a percentage of the then-outstanding Common
Stock of the Company that would otherwise cause such Person to be an “Acquiring Person” or become an “Acquiring
Person” in a manner described in Section 1(a)(i), Section 1(a)(ii) or Section 1(a)(iii) and, in each case, inadvertently
became a Beneficial Owner of additional shares of Common Stock of the Company; or (2) such Person was aware of the extent of its
Beneficial Ownership of Common Stock of the Company but had no actual knowledge of the consequences of such Beneficial Ownership
under this Agreement); and (B) such Person divests as promptly as practicable (as determined in good faith by the Board) a sufficient
number of shares of Common Stock of the Company so that such Person would no longer be an “Acquiring Person,” as defined
pursuant to the foregoing provisions of this paragraph (a), then such person shall not be deemed to be or to have become an “Acquiring
Person” for any purposes of this Agreement as a result of such inadvertent acquisition unless and until such Person again
becomes an “Acquiring Person”; or


 


(v)
if such Person is a bona fide swaps dealer who has become an “Acquiring Person” as a result of its actions in the
ordinary course of its business that the Board determines, in its sole and absolute discretion, were taken without the intent
or effect of evading or assisting any other Person to evade the purposes and intent of this Agreement or otherwise seeking to
control or influence the management or policies of the Company.


 


(b)
“Adjustment Shares” shall have the meaning set forth in Section 11(a)(ii) hereof.


 


(c)
“Affiliate” and “Associate” shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the Exchange Act Regulations, as in effect on the date of this Agreement, and, to the extent not included
within the foregoing, shall also include with respect to any Person, any other Person whose shares of Common Stock would be deemed
to be constructively owned by such first Person, owned by a “single entity” with respect to such first Person as defined
in Section 1.382-3(a)(1) of the Treasury Regulations, or otherwise aggregated with shares owned by such first Person, pursuant
to the provisions of Section 382 of the Code and the Treasury Regulations promulgated thereunder.


 


(d)
“Agreement” shall have the meaning set forth in the Preamble hereof.


 


(e)
A Person is the “Beneficial Owner” of (and shall be deemed to “Beneficially Own”
and to have “Beneficial Ownership” of) any securities (that are as such “Beneficially Owned”):


 


(i)
that such Person or any of such Person’s Related Persons beneficially owns, directly or indirectly, as determined pursuant
to Rule 13d-3 of the Exchange Act Regulations as in effect on the date of this Agreement); provided, however, that
a Person shall not be deemed the “Beneficial Owner” of, or to “Beneficially Own” or to have “Beneficial
Ownership” of, any security under this subparagraph (i) as a result of an agreement, arrangement or understanding to vote
such security that would otherwise render such Person the Beneficial Owner of such security, if such agreement, arrangement or
understanding (A) arises solely from a revocable proxy or consent given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable provisions of the Exchange Act Regulations and (B) is not
also then reportable on Schedule 13D under the Exchange Act (or any comparable or successor report);


 




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(ii)
that such Person or any of such Person’s Related Persons, directly or indirectly, has (A) the right to acquire (whether
such right is exercisable immediately or only after the passage of time or satisfaction of other conditions) pursuant to any agreement,
arrangement or understanding (whether or not in writing), but only if the effect of such agreement, arrangement or understanding
is to treat such Persons as an “entity” under Section 1.382-3(a)(1) of the Treasury Regulations, or upon the exercise
of conversion rights, exchange rights (other than the Rights), rights, warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the “Beneficial Owner” of, or to “Beneficially Own” or to have “Beneficial
Ownership” of) (1) securities (including rights, options or warrants) that are convertible or exchangeable into or exercisable
for Common Stock until such time as such securities are converted or exchanged into or exercised for Common Stock except to the
extent the acquisition or transfer of such rights, options or warrants would be treated as exercised on the date of its acquisition
or transfer under Section 1.382-4(d) of the Treasury Regulations; or (2) securities tendered pursuant to a tender or exchange
offer made in accordance with the Exchange Act Regulations by or on behalf of such Person or any of such Person’s Related
Persons until such tendered securities are accepted for purchase or exchange; or (B) the right to vote or dispose of, pursuant
to any agreement, arrangement or understanding (whether or not in writing), but only if the effect of such agreement, arrangement
or understanding is to treat such Persons as an “entity” under Section 1.382-3(a)(1) of the Treasury Regulations;
or


 


(iii)
that are Beneficially Owned, directly or indirectly, by any other Person (or any Related Person of such Person) with which such
Person (or any of such Person’s Related Persons) has any agreement, arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting or disposing of any such securities, but only if the effect of such agreement, arrangement
or understanding is to treat such Persons as an “entity” under Section 1.382-3(a)(1) of the Treasury Regulations.


 


Notwithstanding
anything in this definition of “Beneficial Ownership” to the contrary, no Person engaged in business as an underwriter
of securities shall be the “Beneficial Owner” to the extent Section 1.382-3(j)(7) of the Treasury Regulations would
not treat such Person as a Beneficial Owner.


 


Notwithstanding
anything in this definition of “Beneficial Ownership” to the contrary, to the extent not within the foregoing provisions,
a Person shall be deemed the Beneficial Owner of, and shall be deemed to Beneficially Own or have Beneficial Ownership of, securities
which such Person would be deemed to constructively own or which otherwise would be aggregated with shares owned by such Person
pursuant to Section 382 of the Code, or any successor provision or replacement provision and the Treasury Regulations thereunder.


 




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With
respect to any Person, for all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding
at any particular time, including, without limitation, for purposes of determining the particular percentage of the outstanding
shares of Common Stock of which any such Person is the Beneficial Owner, shall include the number of shares of Common Stock not
outstanding at the time of such calculation that are issuable through the exercise of any options, warrants, rights or similar
interests (including restricted stock) which such Person is deemed to Beneficially Own, but shall not include the number of shares
of Common Stock not outstanding that are issuable through the exercise of any options, warrants, rights or similar interests (including
restricted stock) which that Person is not deemed to Beneficially Own.


 


(f)
“Board” shall have the meaning set forth in the recitals of this Agreement and shall also include any
duly authorized committee thereof.


 


(g)
“Book Entry” shall mean an uncertificated book entry for the Common Stock.


 


(h)
“Business Day” shall mean any day other than a Saturday, a Sunday or a day on which banking or trust
institutions in New York City, New York are authorized or obligated by law or executive order to close; provided, however,
that banks shall not be deemed to be authorized or obligated to be closed due to a “shelter in place,” “non-essential
employee” or similar closure of physical branch locations at the direction of any governmental authority if such banks’
electronic funds transfer systems (including for wire transfers) are open for use by customers on such day.


 


(i)
“Certificate of Designation” shall have the meaning set forth in Section 1(j) hereof.


 


(j)
“Certificate of Incorporation” shall mean the Restated Certificate of Incorporation of the Company,
as filed with the Office of the Secretary of State of the State of Delaware on November 15, 2007, as further amended following
such date, and as may hereafter be further amended or restated, and together with the Amended and Restated Certificate of Designation
of the Preferred Stock of the Company adopted contemporaneously with the approval of this Agreement and in substantially the form
attached hereto as Exhibit A (the “Certificate of Designation”), authorizing fifty thousand (50,000)
shares of Preferred Stock, as the same may hereafter be amended or restated.


 


(k)
“Close of Business” on any given date shall mean 5:00 P.M., New York City time, on such date; provided,
however, that if such date is not a Business Day, it shall mean 5:00 P.M., New York City time, on the next succeeding
Business Day.


 


(l)
“Closing Price” shall mean, in respect of any security for any day, the last sale price, regular way,
reported at or prior to 4:00 P.M. New York City time or, in case no such sale takes place on such day, the average of the bid
and asked prices, regular way, last reported at or prior to 4:00 P.M. New York City time, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or admitted to trading on NASDAQ or the NYSE or, if
the security is not listed or admitted to trading on NASDAQ or the NYSE, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national or regional securities exchange on which the security
is listed or admitted to trading or, if the security is not listed or admitted to trading on any national or regional securities
exchange, the last quoted price reported at or prior to 4:00 P.M. New York City time in the over-the-counter market or, if not
so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by any system then in
use reported as of 4:00 P.M. New York City time or, if not so quoted, the average of the closing bid and asked price furnished
by a professional market maker making a market in the security, which professional market maker is selected by the Board.


 




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(m)
“Code” shall have the meaning set forth in the recitals to this Agreement.


 


(n)
“Common Stock” (i) when used with reference to the Company, shall mean the Common Stock, par value $0.001
per share, of the Company; and (ii) when used with reference to any Person other than the Company, shall mean the class or series
of capital stock (or equity interest) with the greatest voting power (in relation to any other classes or series of capital stock
(or equity interest)) of such other Person or if such other Person is a Subsidiary of another Person, the Person who ultimately
controls such first mentioned Person.


 


(o)
“Common Stock Equivalents” shall have the meaning set forth in Section 11(a)(iii) hereof.


 


(p)
“Company” shall have the meaning set forth in the Preamble hereof.


 


(q)
“Current Market Price” of any security on any date shall mean the average of the daily Closing Prices
per share of such security for the thirty (30) consecutive Trading Days immediately prior to, but not including, such date; provided,
however, that in the event that the “Current Market Price” of such security is determined during a period
following the announcement by the issuer of such security of (i) a dividend or distribution on such security payable in shares
of such security or securities convertible into such shares (other than the Rights); or (ii) any subdivision, combination or reclassification
of such security, and prior to the expiration of the requisite thirty (30) Trading Day period after but not including the ex-dividend
date for such dividend or distribution or the record date for such subdivision, combination or reclassification, then, in each
such case, the “Current Market Price” shall be appropriately adjusted to take into account ex-dividend trading, as
determined in good faith by the Board, whose determination shall be described in a statement delivered to the Rights Agent and
shall be conclusive for all purposes. If on any such date no market maker is making a market in such security or such security
is not publicly held or not listed or traded, the “Current Market Price” shall mean the fair value per share as determined
in good faith by the Board, whose determination shall be described in a written statement filed with the Rights Agent and shall
be conclusive for all purposes.


 


Except
as provided in this paragraph, the “Current Market Price” of the Preferred Stock shall be determined in accordance
with the method set forth above. If the Preferred Stock is not publicly traded, the “Current Market Price” of the
Preferred Stock shall be conclusively deemed to be the Current Market Price of the Common Stock as determined pursuant to the
paragraph above (appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the
date hereof), multiplied by one thousand. If neither the Common Stock nor the Preferred Stock is publicly held or so listed or
traded, the “Current Market Price” of the Preferred Stock shall mean the fair value per share as determined in good
faith by the Board, whose determination shall be described in a written statement filed with the Rights Agent and shall be conclusive
for all purposes. For all purposes of this Agreement, the “Current Market Price” of one one-thousandth of a share
of Preferred Stock shall be equal to the “Current Market Price” of one share of Preferred Stock divided by 1,000.


 




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(r)
“Current Value” shall have the meaning set forth in Section 11(a)(iii) hereof.


 


(s)
“Distribution Date” shall mean the earlier of (i) the Close of Business on the tenth (10th) Business
Day after the Stock Acquisition Date (or, if the tenth (10th) Business Day after the Stock Acquisition Date occurs before the
Record Date, the Close of Business on the Record Date) and (ii) the Close of Business on the tenth (10th) Business Day (or, if
such tenth (10th) Business Day occurs before the Record Date, the Close of Business on the Record Date), or such later date as
may be determined by action of the Board prior to such time as any Person becomes an Acquiring Person, after the date of the commencement
by any Person of, or of the first public announcement of the intention of any Person to commence, a tender or exchange offer the
consummation of which would result in such Person becoming an Acquiring Person; provided, however, that if such
tender or exchange offer is terminated prior to the occurrence of the Distribution Date, then no Distribution Date shall occur
as a result of such tender or exchange offer.


 


(t)
“Equivalent Preferred Stock” shall have the meaning set forth in Section 11(b) hereof.


 


(u)
“Excess Shares” shall have the meaning set forth in Section 11(a)(ii) hereof.


 


(v)
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.


 


(w)
“Exchange Act Regulations” shall mean the General Rules and Regulations under the Exchange Act.


 


(x)
“Exchange Ratio” shall have the meaning set forth in Section 24(a) hereof.


 


(y)
“Excluded Person” shall mean (i) the Company or any of its Subsidiaries; (ii) any officers, directors
and employees of the Company or any of its Subsidiaries solely in respect of such Person’s status or authority as such (including,
without limitation, any fiduciary capacity); or (iii) any employee benefit plan of the Company or of any Subsidiary of the Company
or any entity or trustee holding (or acting in a fiduciary capacity in respect of) shares of capital stock of the Company for
or pursuant to the terms of any such plan, or for the purpose of funding other employee benefits for employees of the Company
or any Subsidiary of the Company.


 


(z)
“Exempt Person” shall mean (i) any Person determined by the Board to be an “Exempt Person”
in accordance with the requirements set forth in Section 25 hereof for so long as such Person complies with any limitations or
conditions required by the Board in making such determination and (ii) any Person that, together with all of its Related Persons,
is the Beneficial Owner of 4.95% or more of the shares of Common Stock of the Company then-outstanding and such Beneficial Ownership
will not, as determined by the Board in its sole and absolute discretion, jeopardize or endanger the value or availability to
the Company of the Tax Benefits or otherwise be contrary to the best interests of the Company; provided, however,
that any Person deemed to be an “Exempt Person” will cease to be an “Exempt Person” if the Board, in its
sole and absolute discretion, makes a determination that such Person’s Beneficial Ownership would, notwithstanding any prior
determination to the contrary, jeopardize or endanger the value or availability to the Company of the Tax Benefits or otherwise
be contrary to the best interests of the Company.


 




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(aa)
“Exemption Request” shall have the meaning set forth in Section 25 hereof.


 


(bb)
“Expiration Date” shall have the meaning set forth in Section 7(a) hereof.


 


(cc)
“Grandfathered Person” shall mean any Person that, together with all of its Related Persons, is, as
of the date of this Agreement or, if later, immediately prior to the public announcement of the adoption of this Agreement, the
Beneficial Owner of 4.95% or more of the shares of Common Stock of the Company then-outstanding. A Person ceases to be a “Grandfathered
Person” if and when (i) such Person becomes the Beneficial Owner of less than 4.95% of the shares of Common Stock of the
Company then-outstanding; or (ii) such Person increases its Beneficial Ownership of shares of Common Stock of the Company (other
than as a result of (x) a dividend or distribution paid or made by the Company on the outstanding Common Stock, or a split or
subdivision of the outstanding Common Stock, (y) any unilateral grant of any security by the Company, or the exercise of any options,
warrants, rights or similar interests (including restricted stock) granted by the Company to its directors, officers and employees
or (z) share purchases directly from or issuances (including debt-for-equity exchanges) directly by the Company, or in either
case indirectly through an underwritten offering by the Company, in a transaction approved by the Board) to an amount equal to
or greater than the greater of (A) 4.95% of the shares of Common Stock of the Company then-outstanding and (B) the sum of (1)
the lowest Beneficial Ownership of such Person as a percentage of the shares of Common Stock of the Company outstanding as of
any time from and after the public announcement of this Agreement (other than as a result of an acquisition of shares of Common
Stock by the Company) plus (2) one share of Common Stock of the Company then-outstanding.


 


(dd)
“NASDAQ” shall mean The NASDAQ Stock Market LLC.


 


(ee)
“NYSE” shall mean the New York Stock Exchange, Inc.


 


(ff)
“Original Agreement” shall have the meaning set forth in the recitals of this Agreement.


 


(gg)
“Person” shall mean any individual, firm, corporation, partnership (general or limited), limited liability
company, limited liability partnership, association, unincorporated organization, trust or other legal entity, or group of persons
making a “coordinated acquisition” of Common Stock or otherwise treated as an “entity” within the meaning
of Section 1.382-3(a)(1) of the Treasury Regulations, including (i) any syndicate or group deemed to be a Person under Section
13(d)(3) of the Exchange Act and Rule 13d-5(b) thereunder and (ii) any successor (by merger or otherwise) of any such firm, corporation,
partnership (general or limited), limited liability company, limited liability partnership, association, unincorporated organization,
trust or other group or entity.


 


(hh)
“Preferred Stock” shall mean the Series B Junior Participating Preferred Stock, par value $0.01 per
share, of the Company, having the voting rights, powers, designations, preferences and relative, participating, optional or other
special rights and qualifications, limitations and restrictions set forth in the Certificate of Designation.


 




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(ii)
“Principal Party” shall have the meaning set forth in Section 13(b) hereof.


 


(jj)
“Purchase Price” shall have the meaning set forth in Sections 4(a), 11(a)(ii) and 13(a)(i) hereof.


 


(kk)
“Record Date” shall mean the Close of Business on December 23, 2019.


 


(ll)
“Redemption Period” shall have the meaning set forth in Section 23(a) hereof.


 


(mm)
“Redemption Price” shall have the meaning set forth in Section 23(a) hereof.


 


(nn)
“Related Person” shall mean, as to any Person, any Affiliates or Associates of such Person.


 


(oo)
“Requesting Person” shall have the meaning set forth in Section 25 hereof.


 


(pp)
“Right” and “Rights” shall have the meaning set forth in the recitals of this
Agreement.


 


(qq)
“Rights Agent” shall have the meaning set forth in the Preamble hereof.


 


(rr)
“Rights Certificate” shall have the meaning set forth in Section 3(d) hereof.


 


(ss)
“Rights Dividend Declaration Date” shall have the meaning set forth in the recitals of this Agreement.


 


(tt)
“Section 11(a)(ii) Event” shall mean any event described in Section 11(a)(ii) hereof.


 


(uu)
“Section 11(a)(ii) Trigger Date” shall have the meaning set forth in Section 11(a)(iii) hereof.


 


(vv)
“Section 13 Event” shall mean any event described in clause (x), (y) or (z) of Section 13(a) hereof.


 


(ww)
“Section 13 Stock” shall mean the class or series of capital stock or equity interest with the greatest
voting power (in relation to any other classes or series of capital stock or equity interest) in respect of the election of directors
(or other Persons similarly responsible for the direction of the business and affairs) of the Principal Party or if the Principal
Party is a Subsidiary of another Person, the Person who ultimately controls such Principal Party.


 


(xx)
“Securities Act” shall mean the Securities Act of 1933, as amended.


 


(yy)
“Spread” shall have the meaning set forth in Section 11(a)(iii) hereof.


 




    	9



     


    

 


(zz)
“Stock Acquisition Date” shall mean the first date of public announcement (including, without limitation,
the filing of any report pursuant to Section 13(d) of the Exchange Act) by the Company or by an Acquiring Person that a Person
has become an Acquiring Person or that discloses information which reveals the existence of an Acquiring Person, or such other
date, as determined by the Board, on which a Person has become an Acquiring Person.


 


(aaa)
“Subsidiary” shall mean, with reference to any Person, any other Person of which (i) a majority of the
voting power of the voting securities or equity interests is Beneficially Owned, directly or indirectly, by such first-mentioned
Person or otherwise controlled by such first-mentioned Person; or (ii) an amount of voting securities or equity interests sufficient
to elect at least a majority of the directors or equivalent governing body of such other Person is Beneficially Owned, directly
or indirectly, by such first-mentioned Person, or otherwise controlled by such first-mentioned Person.


 


(bbb)
“Substitution Period” shall have the meaning set forth in Section 11(a)(iii) hereof.


 


(ccc)
“Summary of Rights” shall have the meaning set forth in Section 3(a) hereof.


 


(ddd)
“Tax Benefits” shall mean the net operating loss carryovers, capital loss carryovers, general business
credit carryovers, disallowed business interest expense carryforwards and foreign tax credit carryovers, as well as any loss or
deduction attributable to a “net unrealized built-in loss” within the meaning of Section 382 of the Code and the Treasury
Regulations promulgated thereunder, of the Company or any of its Subsidiaries.


 


(eee)
“Trading Day” shall mean, in respect to any security, (i) if such security is listed or admitted to
trading on any national or regional securities exchange, a day on which the principal national or regional securities exchange
on which such security is listed or admitted to trading is open for the transaction of business or, if the security is not listed
or admitted to trading on any national or regional securities exchange and is quoted on the over-the-counter market, as reported
on the OTCBB or by the National Association of Securities Dealers, Inc. or Pinksheets LLC (or any similar organization or agency
succeeding its function of reporting prices), a day on which the over-the-counter market is open for the transaction of business;
provided that any national or regional securities exchange, and the over-the-counter market, shall be deemed to be open
for the transaction of business if electronic auctions are open on such day regardless of the closure of physical locations; and
(ii) if such security is not so listed or admitted or quoted, a Business Day.


 


(fff)
“Treasury Regulations” shall mean the U.S. Treasury Regulations promulgated under the Code, as may be
amended from time to time.


 


(ggg)
“Triggering Event” shall mean any Section 11(a)(ii) Event or any Section 13 Event.


 


(hhh)
“Trust” shall have the meaning set forth in Section 24(d) hereof.


 


(iii)
“Trust Agreement” shall have the meaning set forth in Section 24(d) hereof.


 




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	Section
    2.	Appointment
    of Rights Agent.


 


The
Company hereby appoints the Rights Agent to act as rights agent for the Company and the holders of the Rights (who, in accordance
with Section 3 hereof, shall be, prior to the Distribution Date, the holders of Common Stock of the Company) and in accordance
with the express terms and conditions hereof (and no implied terms or conditions), and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such co-Rights Agents as it may deem necessary or desirable, upon ten (10) days’
prior written notice to the Rights Agent. The Rights Agent shall have no duty to supervise, and shall in no event be liable for,
the acts or omissions of any such co-Rights Agent.


 


	Section
    3.	Issue
    of Rights Certificates.


 


(a)
As promptly as practicable following the date hereof, the Company will make available a copy of an Amended and Restated Summary
of Rights to Purchase Preferred Stock, in substantially the form attached hereto as Exhibit B and which may be appended
to certificates that represent shares of Common Stock (hereinafter referred to as the “Summary of Rights”),
to each holder of Common Stock as of a recent date (other than any Acquiring Person or any Related Person of any Acquiring Person),
at the address of such holder shown on the records of the Company. With respect to certificates representing shares of Common
Stock (or Book Entry shares of Common Stock) outstanding as of the Record Date, until the Distribution Date, the Rights will be
evidenced by such shares of Common Stock registered in the names of the holders thereof together with the Summary of Rights, and
not by separate Rights Certificates. With respect to Book Entry shares of Common Stock outstanding as of the Record Date, until
the Distribution Date, the Rights will be evidenced by the balances indicated in the Book Entry account system of the transfer
agent for the Common Stock, registered in the names of the holders thereof, together with the Summary of Rights. Until the earlier
of the Distribution Date and the Expiration Date, the transfer of any shares of Common Stock outstanding on the Record Date (whether
represented by certificate(s) or evidenced by the balances indicated in the Book Entry account system of the transfer agent for
the Common Stock, and, in either case, regardless of whether a copy of the Summary of Rights is submitted with the surrender or
request for transfer), also shall constitute the transfer of the Rights associated with such shares of Common Stock.


 


(b)
Rights shall be issued, without any further action, in respect of all shares of Common Stock that become outstanding (whether
originally issued or delivered from the Company’s treasury) after the Record Date but prior to the earlier of the Distribution
Date and the Expiration Date; provided, however, that Rights also shall be issued to the extent provided in Section
22 hereof. Confirmation and account statements sent to holders of Common Stock for Book Entry form or, in the case of certificated
shares, certificates, representing such shares of Common Stock, issued after the Record Date shall bear a legend substantially
in the following form:


 


“[This
certificate] [These shares] also evidence[s] and entitle[s] the holder hereof to certain Rights as set forth in an Amended and
Restated Rights Agreement between CytRx Corporation (the “Company”) and American Stock Transfer & Trust Company,
LLC (or any successor rights agent) dated as of November 16, 2020 as the same may be amended or restated from time to time (the
“Rights Agreement”), the terms of which are hereby incorporated herein by reference and a copy of which is on file
at the principal executive offices of the Company. Under certain circumstances, as set forth in the Rights Agreement, such Rights
shall be evidenced by separate certificates and will no longer be evidenced by [this certificate] [these shares]. The Company
will mail to the holder of [this certificate] [these shares] a copy of the Rights Agreement as in effect on the date of mailing
without charge after receipt of a written request therefor.


 




    	11



     


    

 


Under
certain circumstances, as set forth in the Rights Agreement, Rights that are Beneficially Owned by any Person who is, was or becomes
an Acquiring Person or any Affiliate or Associate thereof (as such capitalized terms are defined in the Rights Agreement), or
specified transferees of such Acquiring Person (or Affiliate or Associate thereof) may become null and void.”


 


With
respect to all certificates representing shares of Common Stock containing the foregoing legend in substantially similar form,
until the earlier of the Distribution Date and the Expiration Date, the Rights associated with the Common Stock represented by
such certificates shall be evidenced by such certificates alone and registered holders of Common Stock shall also be the registered
holders of the associated Rights, and the transfer of any such certificate shall also constitute the transfer of the Rights associated
with the shares of Common Stock represented by such certificates.


 


With
respect to Common Stock in Book Entry form for which there has been sent a confirmation or account statement containing the foregoing
legend in substantially similar form, until the earlier of the Distribution Date and the Expiration Date, the Rights associated
with the Common Stock shall be evidenced by such Common Stock alone and registered holders of Common Stock shall also be the registered
holders of the associated Rights, and the transfer of any such Common Stock shall also constitute the transfer of the Rights associated
with such shares of Common Stock.


 


Notwithstanding
this paragraph (b), the omission of the legend or the failure to send, deliver or provide the registered owner of shares of Common
Stock a copy of the Summary of Rights shall not affect the enforceability of any part of this Agreement or the rights of any holder
of the Rights.


 


In
the event that the Company purchases or otherwise acquires any shares of Common Stock after the Record Date but prior to the Distribution
Date, any Rights associated with such shares of Common Stock shall be cancelled and retired so that the Company is not entitled
to exercise any Rights associated with the shares of Common Stock that are no longer outstanding.


 


(c)
Until the Distribution Date, the Rights shall be transferable only in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Company).


 




    	12



     


    

 


(d)
As soon as practicable after the Distribution Date, the Company will prepare and execute, the Rights Agent will countersign and
the Company will send or cause to be sent (and the Rights Agent, if so requested and provided with all necessary information and
documents, will send) by first-class, insured, postage-prepaid mail, to each record holder of shares of Common Stock as of the
Close of Business on the Distribution Date (other than any Acquiring Person or any Related Person of an Acquiring Person), at
the address of such holder shown on the records of the Company, one or more rights certificates, in substantially the form of
Exhibit C hereto (the “Rights Certificate”), evidencing one Right for each share of Common Stock
so held, subject to adjustment as provided herein. In the event that an adjustment in the number of Rights per share of Common
Stock has been made pursuant to Section 11 hereof, at the time of distribution of the Rights Certificates, the Company may make
the necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof) so that Rights Certificates representing
only whole numbers of Rights are distributed and, if such adjustments are made, the Company may pay cash in lieu of any
fractional Rights (in accordance with Section 14(a) hereof). As of and after the Distribution Date, the Rights shall be evidenced
solely by such Rights Certificates, and the Rights Certificates and the Rights will be transferable separately from the transfer
of Common Stock. The Company shall promptly notify the Rights Agent in writing upon the occurrence of the Distribution Date and,
if such notification is given orally, the Company shall confirm the same in writing on or prior to the Business Day next following.
Until such written notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that the
Distribution Date has not occurred.


 


	Section
    4.	Form
    of Rights Certificate.


 


(a)
The Rights Certificates (and the forms of election to purchase and of assignment and the applicable certificate to be printed
on the reverse thereof) shall be substantially in the form set forth in Exhibit C hereto and may have such changes or marks
of identification or designation and such legends, summaries, or endorsements printed thereon as the Company may deem appropriate
(but which do not affect the rights, duties, liabilities or responsibilities of the Rights Agent), and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any applicable law or any rule or regulation thereunder
or with any applicable rule or regulation of any stock exchange upon which the Rights may from time to time be listed or the Financial
Industry Regulatory Authority, or to conform to customary usage. Subject to the provisions of this Agreement, the Rights Certificates,
whenever distributed, shall be dated as of the Distribution Date and on their face shall entitle the holders thereof to purchase
such number of one one-thousandths of a share of Preferred Stock as shall be set forth therein at the price set forth therein
(such exercise price per one one-thousandth of a share, the “Purchase Price”), but the amount and type
of securities, cash, or other assets that may be acquired upon the exercise of each Right and the Purchase Price thereof shall
be subject to adjustment as provided herein.


 


(b)
Any Rights Certificate issued pursuant hereto that represents Rights Beneficially Owned by (i) an Acquiring Person or any Related
Person of an Acquiring Person; (ii) a transferee of an Acquiring Person (or of any such Related Person) that becomes a transferee
after the Acquiring Person becomes an Acquiring Person; or (iii) a transferee of an Acquiring Person (or of any such Related Person)
that becomes a transferee prior to or concurrently with the Acquiring Person becoming an Acquiring Person and that receives such
Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or any such Related Person)
to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person with whom such Acquiring
Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding
the transferred Rights, shares of Common Stock, or the Company; or (B) a transfer that the Board has determined in good faith
to be part of a plan, agreement, arrangement or understanding that has as a primary purpose or effect the avoidance of Section
7(e) hereof (and any Rights Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer, exchange, replacement
or adjustment of any other Rights Certificate referred to in this sentence), shall contain upon the written direction of the Board
(to the extent the Rights Agent has knowledge thereof and to the extent feasible) a legend substantially in the following form:


 




    	13



     


    

 


“The
Rights represented by this Rights Certificate are or were Beneficially Owned by a Person who was or became an Acquiring Person
or a Related Person of an Acquiring Person (as such terms are defined in the Amended and Restated Rights Agreement dated as of
November 16, 2020 by and between CytRx Corporation and American Stock Transfer & Trust Company, LLC (as the same may be amended
from time to time, the “Rights Agreement”)). Accordingly, this Rights Certificate and the Rights represented hereby
are or may become null and void in the circumstances specified in Section 7(e) of the Rights Agreement.”


 


The
Company shall give written notice to the Rights Agent promptly after it becomes aware of the existence and identity of any Acquiring
Person or any Related Person thereof. Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively
for all purposes that no Person has become an Acquiring Person or a Related Person of an Acquiring Person. The Company shall instruct
the Rights Agent in writing of the Rights which should be so legended.


 


	Section
    5.	Countersignature
    and Registration.


 


(a)
The Rights Certificates shall be executed on behalf of the Company by its President and Chief Executive Officer, Chief Financial
Officer or any Senior Vice President, shall have affixed thereto the Company’s corporate seal (or a facsimile thereof),
and shall be attested by the Company’s Secretary or one of its Assistant Secretaries. The signature of any of these officers
on the Rights Certificates may be manual or by facsimile or other customary means of electronic transmission (e.g., “pdf”).
Rights Certificates bearing the signature by manual or facsimile or other customary means of electronic transmission of individuals
who were at the time of execution the proper officers of the Company shall bind the Company, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the countersigning of such Rights Certificates by the Rights Agent or
did not hold such offices at the date of such Rights Certificates. No Rights Certificate shall be entitled to any benefit under
this Agreement or shall be valid for any purpose unless there appears on such Rights Certificate a countersignature duly executed
by an authorized signatory of the Rights Agent by manual or facsimile or other customary means of electronic transmission of an
authorized officer, and such countersignature upon any Rights Certificate shall be conclusive evidence, and the only evidence,
that such Rights Certificate has been duly countersigned as required hereunder. In case any authorized signatory of the Rights
Agent who has countersigned any Rights Certificate ceases to be an authorized signatory of the Rights Agent before issuance and
delivery by the Company, such Rights Certificate, nevertheless, may be issued and delivered by the Company with the same force
and effect as though the person who countersigned such Rights Certificate had not ceased to be an authorized signatory of the
Rights Agent; and any Rights Certificate may be countersigned on behalf of the Rights Agent by any person who, at the actual date
of the countersignature of such Rights Certificate, is properly authorized to countersign such Rights Certificate, although at
the date of the execution of this Agreement any such person was not so authorized.


 




    	14



     


    

 


(b)
Following the Distribution Date, and receipt by the Rights Agent of written notice to that effect and all other relevant and necessary
information and documentation referred to in Section 3(d) hereof, the Rights Agent shall keep or cause to be kept, at its office
designated for such purpose, books for registration and transfer of the Rights Certificates issued hereunder. Such books shall
show the name and address of each holder of the Rights Certificates, the number of Rights evidenced on its face by each Rights
Certificate and the date of each Rights Certificate.


 


	Section
    6.	Transfer,
    Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.


 


(a)
Subject to the provisions of Sections 4(b), 7(e) and 14 hereof, at any time after the Close of Business on the Distribution Date
and at or prior to the Close of Business on the Expiration Date, any Rights Certificate (other than Rights Certificates representing
Rights that have become null and void pursuant to Section 7(e) hereof, that have been redeemed pursuant to Section 23 hereof,
or that have been exchanged pursuant to Section 24 hereof) may be transferred, split up, combined or exchanged for another Rights
Certificate, entitling the registered holder to purchase a like number of one one-thousandths of a share of Preferred Stock (or
following a Triggering Event, Common Stock, other securities, cash or other assets, as the case may be) as the Rights Certificate
or Certificates surrendered then entitled such holder to purchase. Any registered holder desiring to transfer, split up, combine
or exchange any Rights Certificate shall make such request in writing delivered to the Rights Agent, and shall surrender, together
with any required form of assignment duly executed and properly completed, the Rights Certificates to be transferred, split up,
combined or exchanged at the office of the Rights Agent designated for such purpose accompanied by a signature guarantee (if required)
and such other and further documentation as the Company or the Rights Agent may reasonably request. The Rights Certificates are
transferable only on the books and records of the Rights Agent. Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any such surrendered Rights Certificate until the registered holder
has properly completed and duly executed the certificate set forth in the form of assignment on the reverse side of such Rights
Certificate and has provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of
the Rights represented by such Rights Certificate or Related Person thereof as the Company or the Rights Agent may reasonably
request, whereupon the Rights Agent shall, subject to the provisions of Sections 4(b), 7(e) and 14 hereof, countersign and deliver
to the Person entitled thereto a Rights Certificate or Rights Certificates, as the case may be, as so requested. The Company may
require payment by the holder of the Rights of a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Rights Certificates. If and to the extent the Company does
require payment of any such taxes or governmental charges, the Company shall give the Rights Agent prompt written notice thereof
and the Rights Agent shall not deliver any Rights Certificate unless and until it is satisfied that all such payments have been
made, and the Rights Agent shall forward any such sum collected by it to the Company or to such Persons as the Company specifies
by written notice. The Rights Agent shall have no duty or obligation to take any action with respect to a Rights holder under
any Section of this Agreement which requires the payment by such Rights holder of applicable taxes and/or governmental charges
unless and until it is satisfied that all such taxes and/or governmental charges have been paid.


 




    	15



     


    

 


(b)
If a Rights Certificate is mutilated, lost, stolen or destroyed, upon written request by the registered holder of the Rights represented
thereby and upon payment to the Company and the Rights Agent of all reasonable expenses incident thereto, there shall be issued,
in exchange for and upon cancellation of the mutilated Rights Certificate, or in substitution for the lost, stolen or destroyed
Rights Certificate, a new Rights Certificate, in substantially the form of the prior Rights Certificate, of like tenor and representing
the equivalent number of Rights, but, in the case of loss, theft, or destruction, only upon receipt of evidence satisfactory to
the Company and the Rights Agent of such loss, theft or destruction of such Rights Certificate and such additional evidence of
the identity of the Beneficial Owner (or former Beneficial Owner) or Related Persons thereof as the Company or the Rights Agent
requests, and, if requested by the Company or the Rights Agent, indemnity or security also satisfactory to the Company and/or
the Rights Agent.


 


(c)
Notwithstanding any other provision hereof, the Company and the Rights Agent may amend this
Agreement to provide for uncertificated Rights in addition to or in lieu of Rights evidenced by Rights Certificates, to
the extent permitted by applicable law.


 


	Section
    7.	Exercise
    of Rights; Purchase Price; Expiration Date of Rights.


 


(a)
Subject to Section 7(e) hereof, the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except
as otherwise provided herein, including, without limitation, in the restrictions on exercisability set forth in Sections 9(c),
11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to
the Rights Agent at the office of the Rights Agent designated for such purpose accompanied by a signature guarantee and such other
documentation as the Rights Agent may reasonably request, together with payment of the Purchase Price for each one one-thousandth
of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) as to which the Rights
are exercised and an amount equal to any tax or charge required to be paid under Section 9(e) hereof, at or prior to the earliest
of (i) the Close of Business on November 16, 2023; (ii) the time at which the Rights are redeemed as provided in Section 23 hereof;
(iii) the time at which the Rights are exchanged as provided in Section 24 hereof; (iv) the closing of any merger or other acquisition
transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are
terminated; and (v) the Close of Business on the date set by the Board following a determination by the Board that (x) this Agreement
is no longer necessary or desirable for the preservation of Tax Benefits or (y) no Tax Benefits are available to be carried forward
or are otherwise available (the earliest of (i) – (v) being herein referred to as the “Expiration Date”).


 




    	16



     


    

 


(b)
Each Right shall entitle the registered holder thereof to purchase one one-thousandth of a share of Preferred Stock. The “Purchase
Price” for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall initially
be $5.00, and shall be subject to adjustment from time to time as provided in Sections 11 and 13 hereof and shall be payable in
lawful money of the United States in accordance with Section 7(c).


 


(c)
Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate
properly completed and duly executed, accompanied by payment and a signature guarantee and any other reasonable evidence of authority
that may be reasonably required by the Rights Agent, with respect to each Right so exercised, of the Purchase Price per one one-thousandth
of a share of Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) to be purchased and
an amount equal to any applicable tax or governmental charge in cash, by certified or bank check, wire transfer, electronic transfer
or money order payable to the order of the Company, then the Rights Agent shall, subject to Section 18(k) hereof, promptly (i)
(A) requisition from any transfer agent of the Preferred Stock certificates representing such number of one one-thousandths of
a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock)
as are to be purchased and the Company shall direct its transfer agent to comply with all such requests, or (B) if the Company
has elected to deposit the total number of shares of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary
agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of
Preferred Stock as are to be purchased (in which case certificates for the shares of Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent), and the Company shall direct the depositary agent to comply
with all such requests; (ii) if necessary to comply with this Agreement, requisition from the Company the amount of cash, if any,
to be paid in lieu of fractional shares in accordance with Section 14 hereof and, after receipt thereof, deliver such cash
to or upon the order of the registered holder of such Rights Certificate; and (iii) after receipt of such certificates or such
depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such holder. In the event that the Company is obligated to issue Common
Stock or other securities of the Company, pay cash and/or distribute other assets pursuant to Section 11(a) hereof, the Company
shall make all arrangements necessary so that such Common Stock, other securities, cash and/or other assets are available for
distribution by the Rights Agent, if and when necessary to comply with this Agreement, and until so received, the Rights Agent
shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Purchase Price
(as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash, by certified or bank check, wire transfer,
electronic transfer or money order payable to the order of the Company.


 


(d)
In the event a registered holder of any Rights Certificate exercises less than all the Rights evidenced thereby, a new Rights
Certificate evidencing the Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order
of, such holder, registered in such name or names as designated by such holder, subject to the provisions of Sections 6 and 14
hereof.


 


(e)
Notwithstanding anything in this Agreement to the contrary, from and after the Section 11(a)(ii) Event, any Rights Beneficially
Owned by (i) an Acquiring Person or a Related Person of an Acquiring Person; (ii) a transferee of an Acquiring Person (or of any
such Related Person) that becomes a transferee after the Acquiring Person becomes such; or (iii) a transferee of an Acquiring
Person (or of any such Related Person) that becomes a transferee prior to or concurrently with the Acquiring Person becoming such
and that receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or
any such Related Person) to holders of equity interests in such Acquiring Person (or any such Related Person) or to any Person
with whom the Acquiring Person (or any such Related Person) has any continuing written or oral plan, agreement, arrangement or
understanding regarding the transferred Rights, shares of Common Stock or the Company; or (B) a transfer that the Board has determined
in good faith to be part of a plan, agreement, arrangement or understanding that has as a primary purpose or effect the avoidance
of this Section 7(e), shall be null and void without any further action, and any holder of such Rights thereafter shall have no
voting rights, powers, designations, preferences or any other relative, participating, optional or other special rights whatsoever
with respect to such Rights, whether under any provision of this Agreement, the Rights Certificates or otherwise (including, without
limitation, the rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use commercially reasonable
efforts to ensure compliance with the provisions of this Section 7(e) and Section 4(b) hereof, but neither the Company nor the
Rights Agent has or shall have any liability to any holder of Rights or any other Person as a result of the Company’s failure
to make any determination with respect to an Acquiring Person or its Related Persons or transferees hereunder.


 




    	17



     


    

 


(f)
Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company
shall be obligated to undertake any action with respect to a registered holder upon the occurrence of any purported transfer or
exercise as set forth in this Section 7 by such registered holder unless such registered holder has (i) properly completed and
duly executed the certificate following the form of assignment or the form of election to purchase set forth on the reverse side
of the Rights Certificate surrendered for such transfer or exercise, and (ii) provided such additional evidence of the identity
of the Beneficial Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or Related Persons thereof
as the Company reasonably requests.


 


(g)
Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall terminate upon
the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.


 


	Section
    8.	Cancellation
    and Destruction of Rights Certificates.


 


All
Rights Certificates surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if surrendered
to the Company or to any of its agents, be delivered to the Rights Agent for cancellation or in cancelled form, or, if surrendered
to the Rights Agent, shall be cancelled by it, and no Rights Certificates shall be issued in lieu thereof except as expressly
permitted by this Agreement. The Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent
shall so cancel and retire, any Rights Certificates acquired by the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to the Company, or shall, at the written request of the Company, destroy
or cause to be destroyed such cancelled Rights Certificates, and in such case shall deliver a certificate of destruction thereof
to the Company.


 




    	18



     


    

 


	Section
    9.	Reservation
    and Availability of Capital Stock.


 


(a)
The Company shall cause to be reserved and kept available out of its authorized and unissued shares of Preferred Stock (and following
the occurrence of a Triggering Event, out of its authorized and unissued shares of Common Stock and/or other securities or out
of its authorized and issued shares held in its treasury), a number of shares of Preferred Stock (and, following the occurrence
of a Triggering Event, shares of Common Stock and/or other securities) that, except as otherwise provided in this Agreement, including
Section 11(a)(iii) hereof, will be sufficient to permit the exercise in full of all outstanding Rights. Upon the occurrence of
any events resulting in an increase in the aggregate number of shares of Preferred Stock (or Common Stock and/or other equity
securities of the Company) issuable upon exercise of all outstanding Rights above the number then reserved, the Company shall
make appropriate increases in the number of shares so reserved.


 


(b)
So long as the shares of Preferred Stock (and following the occurrence of a Triggering Event, Common Stock and/or other securities)
issuable upon the exercise of the Rights may be listed or admitted to trading on any national or regional securities exchange
or traded and quoted in the over-the-counter market, the Company shall use its commercially reasonable efforts to cause, from
and after such time as the Rights become exercisable, all shares reserved for such issuance to be listed or admitted to trading
on such exchange or traded and quoted in such market upon official notice of issuance upon such exercise.


 


(c)
If the Company is required to file a registration statement pursuant to the Securities Act with respect to the securities purchasable
upon exercise of the Rights, the Company shall use its commercially reasonable efforts to (i) file, as soon as practicable following
the earliest date after the Section 11(a)(ii) Event on which the consideration to be delivered by the Company upon exercise of
the Rights has been determined in accordance with this Agreement, or as soon as is required by law following the Distribution
Date, as the case may be, such registration statement; (ii) cause such registration statement to become effective as soon as practicable
after such filing; and (iii) cause such registration statement to remain effective (and to include a prospectus at all times complying
with the requirements of the Securities Act) until the earlier of (A) the date as of which the Rights are no longer exercisable
for the securities covered by such registration statement, and (B) the Expiration Date. The Company shall also take such action
as may be appropriate under, or to ensure compliance with, the securities or “blue sky” laws of the various states
in connection with the exercisability of the Rights. The Company may temporarily suspend, with prompt written notice thereof to
the Rights Agent, for a period of time not to exceed one hundred twenty (120) days after the date set forth in clause (i) of the
first sentence of this Section 9(c), the exercisability of the Rights in order to prepare and file such registration statement
and permit it to become effective. Upon any such suspension, the Company shall issue a public announcement stating that the exercisability
of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in
effect, in each case with prompt written notice to the Rights Agent. Notwithstanding any provision of this Agreement to the contrary,
the Rights shall not be exercisable in any jurisdiction if the requisite qualification in such jurisdiction shall not have been
obtained, the exercise thereof shall not be permitted under applicable law or an effective registration statement is required
and shall not have been declared effective or has been suspended.


 


(d)
The Company shall take such action as may be necessary to ensure that each one one-thousandth of a share of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock and/or other securities that may be delivered upon exercise of Rights)
shall be, at the time of delivery of the certificates or depositary receipts for such securities (subject to payment of the Purchase
Price), duly and validly authorized and issued, fully paid and non-assessable.


 




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(e)
The Company shall pay when due and payable any and all documentary, stamp or transfer tax, or other tax or governmental charge,
that is payable in respect of the issuance and delivery of the Rights Certificates or the issuance and delivery of any certificates
or depository receipts or entries in the Book Entry account system of the transfer agent for the Preferred Stock for a number
of one one-thousandths of a share of Preferred Stock (or Common Stock and/or other equity securities of the Company that may be
delivered upon exercise of the Rights) upon the exercise of Rights; provided, however, the Company shall not be
required to pay any such tax or governmental charge that may be payable in connection with the issuance or delivery of any of
any certificates or depositary receipts or entries in the Book Entry account system of the transfer agent for the Preferred Stock
for a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or other equity securities of the Company
as the case may be) to any Person other than the registered holder of the Rights Certificates evidencing the Rights surrendered
for exercise. The Company shall not be required to issue or deliver any certificates or depositary receipts or entries in the
Book Entry account system of the transfer agent for the Preferred Stock (or Common Stock and/or other equity securities of the
Company as the case may be) to, or in a name other than that of, the registered holder upon the exercise of any Rights until any
such tax or governmental charge has been paid (any such tax or governmental charge being payable by the holder of such Rights
Certificate at the time of surrender) or until it has been established to the Company’s or Rights Agent’s satisfaction
that no such tax or governmental charge is due.


 


	Section
    10.	Preferred
    Stock Record Date.


 


Each
Person in whose name any certificate or entry in the Book Entry account system of the transfer agent for the Preferred Stock for
a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is
issued upon the exercise of Rights shall be for all purposes the holder of record of such fractional shares of Preferred Stock
(or Common Stock and/or other securities, as the case may be) represented thereby on, and such certificate or entry shall be dated
the date upon which the Rights Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and
any applicable transfer taxes and governmental charges) was made; provided, however, that if the date of such surrender
and payment is a date upon which the applicable transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such securities (fractional or otherwise) on, and such certificate or entry shall be dated, the next
succeeding Business Day on which the applicable transfer books of the Company are open; provided, further, that
if delivery of a number of one one-thousandths of a share of Preferred Stock is delayed pursuant to Section 9(c) hereof, such
Persons shall be deemed to have become the record holders of such number of one one-thousandths of a share of Preferred Stock
only when such Preferred Stock first become deliverable. Prior to the exercise of the Rights evidenced thereby, the holder of
a Rights Certificate shall not be entitled to any rights of a stockholder of the Company with respect to the securities for which
the Rights are exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company, except as provided
herein.


 




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	Section
    11.	Adjustment
    of Purchase Price, Number and Kind of Shares or Number of Rights.


 


The
Purchase Price, the number and kind of securities covered by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.


 


(a)
(i) In the event the Company at any time after the Rights Dividend Declaration Date (A) declares a dividend on the Preferred Stock
payable in shares of Preferred Stock; (B) subdivides the outstanding Preferred Stock; (C) combines the outstanding Preferred Stock
into a smaller number of shares; or (D) issues any shares of its capital stock in a reclassification of Preferred Stock (including
any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving entity),
except as otherwise provided in this Section 11(a), then the Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares (or
fractions thereof) of Preferred Stock or capital stock, as the case may be, issuable on such date upon exercise of the Rights,
shall be proportionately adjusted so that the holder of any Right exercised after such time becomes entitled to receive, upon
payment of the Purchase Price then in effect, the aggregate number and kind of shares (or fractions thereof) of Preferred Stock
or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, such holder would
have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification;
provided, however, that in no event will the consideration to be paid upon the exercise of one Right be less than
the aggregate par value of the shares (or fractions thereof) of capital stock of the Company issuable upon exercise of one Right.
If an event occurs that would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment
provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.


 


(ii)
Subject to Section 23 and Section 24 hereof, in the event that any Person, alone or together with its Related Persons, becomes
an Acquiring Person (the first occurrence of such event, the “Section 11(a)(ii) Event”), unless the
event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof, then proper provision
shall be made so that promptly following the Redemption Period, each holder of a Right (except as provided below and in Section
7(e) hereof) shall thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the then current
Purchase Price in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of
Preferred Stock, a number of shares of Common Stock of the Company equal to the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-thousandths of a share of Preferred Stock for which a Right was or would have been exercisable
immediately prior to the Section 11(a)(ii) Event, whether or not such Right was then exercisable; and (B) dividing that product
(which, following such Section 11(a)(ii) Event, shall thereafter be referred to as the “Purchase Price”
for each Right and for all purposes of this Agreement except to the extent set forth in Section 13 hereof) by 50% of the Current
Market Price of Common Stock on the date of such Section 11(a)(ii) Event (such number of shares, the “Adjustment Shares”);
provided, however, that in connection with any exercise effected pursuant to this Section 11(a)(ii), no holder of
Rights shall be entitled to receive Common Stock (or other shares of capital stock of the Company) that would result in such holder,
together with such holder’s Related Persons, becoming the Beneficial Owner of more than 4.95% of the then-outstanding Common
Stock (or, in the case of a Grandfathered Person, becoming the Beneficial Owner of an additional share of Common Stock (or other
shares of capital stock of the Company)). If (x) a holder would, but for the proviso in the immediately preceding sentence, be
entitled to receive upon exercise of a Right a number of shares that would otherwise result in such holder, together with such
holder’s Related Persons, becoming the Beneficial Owner of in excess of 4.95% of the then-outstanding Common Stock (or,
in the case of a Grandfathered Person, becoming the Beneficial Owner of an additional share of Common Stock (or other shares of
capital stock of the Company)) (such shares, the “Excess Shares”) and (y) the Board, in its sole and
absolute discretion, makes a determination that such holder’s receipt of Excess Shares would jeopardize or endanger the
value or availability to the Company of the Tax Benefits or the Board otherwise determines, in its sole and absolute discretion,
that such holder’s receipt of Excess Shares is not in the best interests of the Company, then in lieu of receiving
such Excess Shares and to the extent permitted by law or orders applicable to the Company, such holder will only be entitled to
receive an amount in cash or, at the election of the Company, a note or other evidence of indebtedness maturing within nine (9)
months with a principal amount, equal to the Current Market Price of a share of Common Stock at the Close of Business on the Trading
Day following the date of exercise multiplied by the number of Excess Shares that would otherwise have been issuable to such holder.
The Company shall provide the Rights Agent with prompt written notice of the identity of any such Acquiring Person, Related Person
or the nominee or transferee of any of the foregoing, and the Rights Agent may rely on such notice in carrying out its duties
under this Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Related Person
or the nominee or transferee of any of the foregoing, unless and until it has received such notice.


 




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(iii)
The Company at its option may substitute for a share of Common Stock issuable upon the exercise of Rights in accordance with the
foregoing clause (ii) such number or fractions of shares of Preferred Stock having an aggregate market value equal to the Current
Market Price of one share of Common Stock. In the event that the number of shares of Common Stock authorized by the Certificate
of Incorporation, but not outstanding, or reserved for issuance for purposes other than upon exercise of the Rights, is not sufficient
to permit the exercise in full of the Rights in accordance with the foregoing clause (ii), the Board shall, to the extent permitted
by applicable law and by any agreements or instruments then in effect to which the Company is a party, (A) determine the excess
of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value”)
over (2) the Purchase Price (such excess being the “Spread”), and (B) with respect to each Right (subject
to Section 7(e) hereof), make adequate provision to substitute for some or all of the Adjustment Shares, upon exercise of a Right
and payment of the applicable Purchase Price, (1) cash; (2) a reduction in the Purchase Price; (3) shares or fractions of a share
of Preferred Stock or other equity securities of the Company (including, without limitation, shares, or units of shares, of Preferred
Stock which the Board has determined to have the same value as shares of Common Stock) (such shares of equity securities being
herein called “Common Stock Equivalents”); (4) debt securities of the Company; (5) other assets; or
(6) any combination of the foregoing, in each case having an aggregate value equal to the Current Value, as determined by the
Board based upon the advice of an investment banking firm selected by the Board; provided, however, if the Company
has not made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x)
the Section 11(a)(ii) Event; and (y) the date on which the Redemption Period expires (the later of (x) and (y) being referred
to herein as the “Section 11(a)(ii) Trigger Date”), then the Company shall deliver, upon the surrender
for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (to the extent available),
and then, if necessary such number or fractions of shares of Preferred Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value equal to the Spread.


 




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If,
upon the occurrence of the Section 11(a)(ii) Event, the Board determines in good faith that it is likely that sufficient additional
shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, then if the Board so elects, the
thirty (30)-day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares
(such period, as it may be extended, the “Substitution Period”). To the extent that action is to be
taken pursuant to the preceding provisions of this Section 11(a)(iii), the Company (aa) shall provide, subject to Section 7(e)
hereof, that such action shall apply uniformly to all outstanding Rights; and (bb) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in order to seek an authorization of additional shares and/or to decide the appropriate
form of distribution to be made pursuant to the second sentence of this Section 11(a)(iii) and to determine the value thereof.
In the event of any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the
Rights Agent) stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement (with
prompt written notice thereof to the Rights Agent) at such time as the suspension is no longer in effect. For purposes of this
Section 11(a)(iii), the value of the Common Stock shall be the Current Market Price of the Common Stock on the Section 11(a)(ii)
Trigger Date and the value of any Common Stock Equivalents shall have the same value as the Common Stock on such date. The Board
may, but shall not be required to, establish procedures to allocate the right to receive shares of Common Stock upon the exercise
of the Rights among holders of Rights pursuant to this Section 11(a)(iii).


 


(b)
In case the Company fixes a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling
them (for a period expiring within forty-five (45) days after such record date) to subscribe for or purchase Preferred Stock (or
shares having the same voting rights, powers, designations, preferences and relative, participating, optional or other special
rights as the shares of Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into
Preferred Stock or Equivalent Preferred Stock at a price per share of Preferred Stock or per share of Equivalent Preferred Stock
(or having a conversion price per share, if a security convertible into Preferred Stock or Equivalent Preferred Stock) less than
the Current Market Price of the Preferred Stock on such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator
of which shall be the number of shares of Preferred Stock or Equivalent Preferred Stock outstanding on such record date, plus
the number of shares of Preferred Stock or Equivalent Preferred Stock which the aggregate offering price of the total number of
shares of Preferred Stock and/or Equivalent Preferred Stock so to be offered (and/or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase at such Current Market Price, and the denominator of which shall be
the number of shares of Preferred Stock or Equivalent Preferred Stock outstanding on such record date, plus the number of additional
shares of Preferred Stock and/or Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible); provided, however, that in no event may the consideration
to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable
upon exercise of one Right. In case such subscription price may be paid by delivery of consideration all or part of which may
be in a form other than cash, the value of such consideration shall be determined by the Board, whose determination shall be described
in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred
Stock or Equivalent Preferred Stock owned by or held for the account of the Company or any Subsidiary will not be deemed outstanding
for the purpose of such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the
event that such rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price that
would have been in effect if such record date had not been fixed.


 




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(c)
In case the Company fixes a record date for a distribution to all holders of shares of Preferred Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the continuing or surviving entity), evidences of indebtedness,
cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than
a dividend payable in shares of Preferred Stock, but including any dividend payable in stock other than Preferred Stock), or subscription
rights, options or warrants (excluding those referred to in Section 11(b) hereof), then, in each case, the Purchase Price to be
in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the Current Market Price of the Preferred Stock on such record date minus
the fair market value (as determined in good faith by the Board, whose determination shall be described in a statement filed with
the Rights Agent and shall be binding and conclusive for all purposes on the Rights Agent and the holders of the Rights) of the
portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants distributable
in respect of a share of Preferred Stock, and the denominator of which shall be the Current Market Price of the Preferred Stock
on such record date; provided, however, that in no event shall the consideration to be paid upon the exercise of
one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right.
Such adjustments shall be made successively whenever such a record date is fixed; and in the event that such distribution is not
so made, the Purchase Price shall be adjusted to be the Purchase Price that would have been in effect if such record date had
not been fixed.


 


(d)
Notwithstanding anything herein to the contrary, no adjustment in the Purchase Price is required unless such adjustment would
require an increase or decrease of at least one percent (1%) in the Purchase Price; provided, however, that any
adjustments that by reason of this Section 11(d) are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest ten-thousandth
of a share of Common Stock or other share or one-millionth of a share of Preferred Stock, as the case may be. Notwithstanding
the first sentence of this Section 11(d), no adjustment required by this Section 11 may be made after the earlier of (i) three
(3) years from the date of the transaction that requires such adjustment and (ii) the Expiration Date.


 


(e)
If, as a result of an adjustment made pursuant to Sections 11(a)(ii) or 13(a) hereof, the holder of any Right thereafter exercised
becomes entitled to receive any shares of capital stock other than Preferred Stock, the number of such other shares shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to
the Preferred Stock contained in Sections 11(a), (b), (c), (d), (f), (g), (h), (i), (j), (k) and (l) hereof, and the provisions
of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred Stock shall apply on like terms to any such other shares.


 




    	24



     


    

 


(f)
All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder will evidence the
right to purchase, at the adjusted Purchase Price, the number of one one-thousandths of a share of Preferred Stock (or other securities
or amount of cash or combination thereof) that may be acquired from time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.


 


(g)
Unless the Company has exercised its election pursuant to Section 11(h), upon each adjustment of the Purchase Price as a result
of the calculations made in Sections 11(b) and (c) hereof, each Right outstanding immediately prior to the making of such adjustment
will thereafter evidence the right to purchase, at the adjusted Purchase Price, a number of one one-thousandths of a share of
Preferred Stock (calculated to the nearest one-millionth of a share) obtained by (i) multiplying (A) the number of one one-thousandths
of a share covered by a Right immediately prior to this adjustment by (B) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price; and (ii) dividing the product so obtained by the Purchase Price in effect immediately after
such adjustment of the Purchase Price.


 


(h)
The Company may elect, on or after the date of any adjustment of the Purchase Price, to adjust the number of Rights, in lieu
of any adjustment in the number of one one-thousandths of a share of Preferred Stock that may be acquired upon the exercise
of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of
one one-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights shall become a number of Rights (calculated to the nearest
one ten-thousandth of a Right) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company shall make a public announcement
(with prompt written notice thereof to the Rights Agent) of its election to adjust the number of Rights, indicating the record
date for the adjustment, and, if known at the time, the amount of the adjustment to be made. Such record date may be the date
on which the Purchase Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least
ten (10) days later than the date of such public announcement. If Rights Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(h), the Company may, as promptly as practicable, at the option of the Company,
either (A) cause to be distributed to holders of record of Rights Certificates on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders are entitled as a result of such adjustment, or (B)
cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Rights Certificates evidencing all
the Rights to which such holders become entitled after such adjustment. Rights Certificates so to be distributed shall be issued,
executed and delivered by the Company, and countersigned and delivered by the Rights Agent, in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders
of record of Rights Certificates on the record date specified in the public announcement.


 




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(i)
Irrespective of any adjustment or change in the Purchase Price or the number of one one-thousandths of a share of Preferred Stock
issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the
Purchase Price per one one-thousandth of a share and the number of one one-thousandths of a share which were expressed in the
initial Rights Certificates issued hereunder.


 


(j)
Before taking any action that would cause an adjustment reducing the Purchase Price below the then par value, if any, of the number
of one one-thousandths of a share of Preferred Stock issuable upon exercise of the Rights, the Company shall take any corporate
action that may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue, such number
of fully paid and non-assessable one one-thousandths of a share of Preferred Stock at such adjusted Purchase Price.


 


(k)
In any case in which this Section 11 requires that an adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer (with prompt written notice thereof to the Rights Agent) until the occurrence
of such event the issuance to the holder of any Right exercised after such record date of that number of one one-thousandths of
a share of Preferred Stock and shares of other capital stock or securities of the Company, if any, issuable upon such exercise
over and above the number of one one-thousandths of a share of Preferred Stock and shares of other capital stock or securities
of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such holder’s
right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such
adjustment.


 


(l)
Notwithstanding anything in this Section 11 to the contrary, prior to the Distribution Date, the Company is entitled to make such
adjustments in the Purchase Price, in addition to those adjustments expressly required by this Section 11, to the extent that
the Board determines that any (i) consolidation or subdivision of the Preferred Stock; (ii) issuance wholly for cash of any shares
of Preferred Stock at less than the Current Market Price; (iii) issuance wholly for cash of shares of Preferred Stock or securities
that by their terms are convertible into or exchangeable for shares of Preferred Stock; (iv) stock dividends; or (v) issuance
of rights, options or warrants referred to in this Section 11, hereafter made by the Company to holders of its Preferred Stock,
is taxable to such holders or reduces the taxes payable by such holders.


 


(m)
The Company may not, at any time after the Distribution Date, (i) consolidate with any other Person (other than a direct or indirect,
wholly owned Subsidiary of the Company in a transaction that is not prohibited by Section 11(n) hereof); (ii) merge with or into
any other Person (other than a direct or indirect, wholly owned Subsidiary of the Company in a transaction that is not prohibited
by Section 11(n) hereof); or (iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one transaction, or a series
of transactions, assets or earning power aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the Company and/or any of its direct or indirect, wholly owned Subsidiaries
in one or more transactions, none of which is prohibited by Section 11(n) hereof), if (A) at the time of or immediately after
such consolidation, merger or sale there are any rights, warrants or other instruments or securities outstanding or agreements
in effect that would substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights; or (B)
prior to, simultaneously with or immediately after such consolidation, merger or sale, the stockholders or other Persons holding
an equity interest in such Person that constitutes, or would constitute, the “Principal Party” for purposes of Section
13(a) hereof shall have received a distribution of, or otherwise have transferred to them, the Rights previously owned by such
Person or any of its Related Persons; provided, however, this Section 11(m) shall not affect the ability of any
Subsidiary of the Company to consolidate with, merge with or into, or sell or transfer assets or earning power to, any other Subsidiary
of the Company.


 




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(n)
After the Distribution Date and as long as any Rights are outstanding (other than Rights that have become null and void pursuant
to Section 7(e) hereof), the Company may not, except as permitted by Sections 23, 24 and 28 hereof, take (or permit any Subsidiary
of the Company to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by the Rights.


 


(o)
Notwithstanding anything in this Agreement to the contrary, in the event that the Company, at any time after the date hereof and
prior to the Distribution Date, (i) declares a dividend on the outstanding shares of Common Stock payable in shares of Common
Stock; (ii) subdivides any outstanding shares of Common Stock; (iii) combines any of the outstanding shares of Common Stock into
a smaller number of shares; or (iv) issues any shares of its capital stock in a reclassification of the Common Stock (including
any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving entity),
then the number of Rights associated with each share of Common Stock then-outstanding or issued or delivered thereafter but prior
to the Distribution Date shall be proportionately adjusted so that the number of Rights thereafter associated with each share
of Common Stock following any such event equals the result obtained by multiplying the number of Rights associated with each share
of Common Stock immediately prior to such event by a fraction the numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares
of Common Stock outstanding immediately following the occurrence of such event. The adjustments provided for in this Section 11(o)
shall be made successively whenever such a dividend is declared or paid or such a subdivision, combination, or reclassification
is effected. If an event occurs that would require an adjustment under Section 11(a)(ii) hereof and this Section 11(o), the adjustments
provided for in this Section 11(o) shall be in addition and prior to any adjustment required pursuant to Section 11(a)(ii) hereof.


 


	Section
    12.	Certificate
    of Adjusted Purchase Price or Number of Shares.


 


Whenever
an adjustment is made or any event affecting the Rights or their exercisability (including without limitation an event that causes
Rights to become null and void) occurs as provided in Section 11 or Section 13 hereof, the Company shall (a) promptly prepare
a certificate setting forth such adjustment or describing such event, and a brief reasonably detailed statement of the facts,
computations and methodology accounting for such adjustment; (b) promptly file with the Rights Agent, and with each transfer agent
for the Preferred Stock and the Common Stock, a copy of such certificate; and (c) make available a brief summary thereof to each
holder of a Rights Certificate (or, if prior to the Distribution Date, each registered holder of shares of Common Stock) in accordance
with Section 27 hereof. Notwithstanding the foregoing sentence, the failure of the Company to make such certification or give
such notice shall not affect the validity of or the force or effect of the requirement for such adjustment. Any adjustment to
be made pursuant to Section 11 or Section 13 hereof shall be effective as of the date of the event giving rise to such adjustment.
The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment or statement therein contained
and shall have no duty or liability with respect thereto, and shall not be deemed to have knowledge of any such adjustment or
any such event unless and until it shall have received such certificate.


 




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	Section
    13.	Consolidation,
    Merger or Sale or Transfer of Assets or Earning Power.


 


(a)
Subject to Section 23 hereof, at any time after a Person has become an Acquiring Person, in the event that, directly or indirectly,


 


(x)
the Company consolidates with, or merges with and into, any other Person (other than a direct or indirect, wholly owned Subsidiary
of the Company in a transaction that is not prohibited by Section 11(n) hereof), and the Company is not the continuing or surviving
entity of such consolidation or merger;


 


(y)
any Person (other than a direct or indirect, wholly owned Subsidiary of the Company in a transaction that is not prohibited by
Section 11(n) hereof) consolidates with, or merges with or into, the Company, and the Company is the continuing or surviving entity
of such consolidation or merger and, in connection with such consolidation or merger, all or part of the outstanding shares of
Common Stock is converted into or exchanged for stock or other securities of any other Person (or the Company) or cash or any
other property; or


 


(z)
the Company sells or otherwise transfers (or one or more of its Subsidiaries sells or otherwise transfers) to any Person or Persons
(other than the Company or any of its direct or indirect, wholly owned Subsidiaries in one or more transactions, none of which
is prohibited by Section 11(m) hereof), in one or more transactions, assets or earning power aggregating 50% or more of the assets
or earning power of the Company and its Subsidiaries, taken as a whole;


 


(any
such event described in (x), (y) or (z), a “Section 13 Event”), then, in each such case, proper provision
shall be made so that:


 


(i)
each holder of a Right, except as provided in Section 7(e) hereof, upon the expiration of the Redemption Period, will have the
right to receive, upon the exercise of the Right at the then current Purchase Price in accordance with the terms of this Agreement,
and in lieu of a number of one one-thousandth shares of Preferred Stock, a number of validly authorized and issued, fully
paid, non-assessable and freely tradable shares of Section 13 Stock of the Principal Party, free of any liens, encumbrances, rights
of first refusal, transfer restrictions or other adverse claims, equal to the result obtained by:


 




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(A)
multiplying such then current Purchase Price by the number of one one-thousandths of a share of Preferred Stock for which such
Right is exercisable immediately prior to the first occurrence of a Section 13 Event (or, if the Section 11(a)(ii) Event has occurred
prior to the first occurrence of a Section 13 Event, multiplying the number of one one-thousandths of a share of Preferred Stock
for which a Right would be exercisable hereunder but for such Section 11(a)(ii) Event by the Purchase Price that would be in effect
hereunder but for such Section 11(a)(ii) Event) (following the first occurrence of a Section 13 Event, references to the “Purchase
Price” shall thereafter mean such product for each Right and for all purposes of this Agreement), and


 


(B)
dividing that product by 50% of the then Current Market Price of the shares of Section 13 Stock of such Principal Party on the
date of consummation of such Section 13 Event (or the fair market value on such date of other securities or property of the Principal
Party, as provided for herein);


 


(ii)
such Principal Party shall be liable for, and shall assume, by virtue of such Section 13 Event, all the obligations and duties
of the Company pursuant to this Agreement;


 


(iii)
the term “Company” will thereafter be deemed to refer to such Principal Party, it being specifically intended that
the provisions of Section 11 hereof shall apply only to such Principal Party following the first occurrence of a Section 13 Event;


 


(iv)
such Principal Party will take such steps (including, but not limited to, the reservation of a sufficient number of shares of
its Section 13 Stock) in connection with the consummation of any such transaction as may be necessary to ensure that the provisions
hereof shall be applicable, as nearly as reasonably may be possible, to its shares of Section 13 Stock thereafter deliverable
upon the exercise of the Rights; and


 


(v)
the provisions of Section 11(a)(ii) hereof shall be of no further effect following the first occurrence of any Section 13 Event,
and the Rights that have not theretofore been exercised shall thereafter become exercisable in the manner described in this Section
13.


 


(b)
“Principal Party” shall mean


 


(i)
in the case of any transaction described in clause (x) or (y) of the first sentence of Section 13(a) hereof, (A) the Person (including
the Company as successor thereto or as the surviving entity) that is the issuer of any securities or other equity interests into
which shares of Common Stock of the Company are converted in such merger or consolidation, or, if there is more than one such
issuer, the issuer of Common Stock that has the highest aggregate Current Market Price; and (B) if no securities or other equity
interests are so issued, (1) the Person that is the other constituent party to such merger, if such Person survives the merger,
or, if there is more than one such Person, the Person, the Common Stock of which has the highest aggregate Current Market Price
or (2) if the Person that is the other party to the merger does not survive the merger, the Person that does survive the merger
(including the Company if it survives) or (3) the Person resulting from the consolidation; and


 




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(ii)
in the case of any transaction described in clause (z) of the first sentence of Section 13(a) hereof, the Person that is the party
receiving the largest portion of the assets or earning power transferred pursuant to such transaction or transactions, or, if
each Person that is a party to such transaction or transactions receives the same portion of the assets or earning power transferred
pursuant to such transaction or transactions or if the Person receiving the largest portion of the assets or earning power cannot
be determined, whichever Person that has received assets or earning power pursuant to such transaction or transactions, the Common
Stock of which has the highest aggregate Current Market Price; provided, however, that in any such case: (1) if
the Common Stock of such Person is not at such time and has not been continuously over the preceding twelve (12)-month period
registered under Section 12 of the Exchange Act, and such Person is a direct or indirect Subsidiary of another Person the Common
Stock of which is and has been so registered, “Principal Party” will refer to such other Person; (2) if the Common
Stock of such Person is not and has not been so registered and such Person is a Subsidiary, directly or indirectly, of more than
one Person, the common stocks (or similar equity interests) of two or more of which are and have been so registered, “Principal
Party” will refer to whichever of such Persons is the issuer of the Common Stock having the highest aggregate market value;
and (3) if the Common Stock of such Person is not and has not been so registered and such Person is owned, directly or indirectly,
by a joint venture formed by two or more Persons that are not owned, directly or indirectly, by the same Person, the rules set
forth in (1) and (2) above will apply to each of the chains of ownership having an interest in such joint venture as if such party
were a Subsidiary of both or all of such joint venturers, and the Principal Parties in each such chain shall bear the obligations
set forth in this Section 13 in the same ratio as their direct or indirect interests in such Person bear to the total of such
interests.


 


(c)
The Company may not consummate any Section 13 Event unless the Principal Party has a sufficient number of authorized shares of
its Section 13 Stock that have not been issued (or reserved for issuance) or that are held in its treasury to permit the exercise
in full of the Rights in accordance with this Section 13 and unless prior thereto the Company and such Principal Party have executed
and delivered to the Rights Agent a supplemental agreement providing for the terms set forth in paragraphs (a) and (b) of this
Section 13 and further providing that, as soon as practicable after the date of any such Section 13 Event, the Principal Party,
at its own expense, shall:


 


(i)
if the Principal Party is required to file a registration statement pursuant to the Securities Act with respect to the Rights
and the securities purchasable upon exercise of the Rights, (A) prepare and file such registration statement; (B) use its best
efforts to cause such registration statement to become effective as soon as practicable after such filing and remain effective
(and to include a prospectus at all times complying with the requirements of the Securities Act) until the Expiration Date; and
(C) take such action as may be required to ensure that any acquisition of such securities that may be acquired upon exercise of
the Rights complies with any applicable state security or “blue sky” laws as soon as practicable following the execution
of such agreement;


 


(ii)
deliver to holders of the Rights historical financial statements for the Principal Party and each of its Affiliates that comply
in all respects with the requirements for registration on Form 10 (or any successor form) under the Exchange Act;


 




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(iii)
use its best efforts to obtain any and all necessary regulatory approvals as may be required with respect to the securities that
may be acquired upon exercise of the Rights; and


 


(iv)
use its best efforts, if such Section 13 Stock of the Principal Party is listed or admitted to trading on NASDAQ, the NYSE or
on another national or regional securities exchange, to list or admit to trading (or continue the listing of) the Rights and the
securities that may be acquired upon exercise of the Rights on NASDAQ, the NYSE or on such securities exchange, or if the securities
of the Principal Party that may be acquired upon exercise of the Rights are not listed or admitted to trading on NASDAQ, the NYSE
or a national or regional securities exchange, to cause the Rights and the securities that may be acquired upon exercise of the
Rights to be authorized for quotation on any other system then in use; and


 


(v)
obtain waivers of any rights of first refusal or preemptive rights in respect of the Section 13 Stock of the Principal Party subject
to purchase upon exercise of outstanding Rights.


 


(d)
In case the Principal Party that is to be a party to a transaction referred to in this Section 13 has at the time of such transaction,
or immediately following such transaction has a provision in any of its authorized securities or in its certificate or articles
of incorporation or by-laws or other instrument governing its affairs, or any other agreements or arrangements, which provision
would have the effect of (i) causing such Principal Party to issue, in connection with, or as a consequence of, the consummation
of a transaction referred to in this Section 13, shares of Section 13 Stock of such Principal Party at less than the then Current
Market Price or securities exercisable for, or convertible into, Section 13 Stock of such Principal Party at less than such then
Current Market Price (other than to holders of Rights pursuant to this Section 13); (ii) providing for any special payment, tax
or similar provisions in connection with the issuance of the Section 13 Stock of such Principal Party pursuant to the provisions
of this Section 13; or (iii) otherwise eliminating or substantially diminishing the benefits intended to be afforded by the Rights
in connection with, or as a consequence of, the consummation of a transaction referred to in this Section 13, then, in each such
case, the Company may not consummate any such transaction unless prior thereto the Company and such Principal Party have executed
and delivered to the Rights Agent a supplemental agreement providing that the provision in question of such Principal Party has
been cancelled, waived or amended, or that the authorized securities have been redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the consummation of such transaction.


 


(e)
The provisions of this Section 13 shall apply similarly to successive mergers or consolidations or sales or other transfers. In
the event that a Section 13 Event occurs after the Section 11(a)(ii) Event, the Rights that have not theretofore been exercised
shall thereafter become exercisable in the manner described in Section 13(a) hereof.


 


(f)
Notwithstanding anything contained herein to the contrary, in the event of any merger or other acquisition transaction involving
the Company pursuant to a merger or other acquisition agreement between the Company and any Person (or one or more of such Person’s
Related Persons) which agreement has been approved by the Board prior to any Person becoming an Acquiring Person, this Agreement
and the rights of holders of Rights hereunder shall be terminated in accordance with Section 7(a).


 




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	Section
    14.	Fractional
    Rights; Fractional Shares; Waiver.


 


(a)
The Company is not required to issue fractions of Rights except prior to the Distribution Date as provided in Section 11(o) hereof,
or to distribute Rights Certificates that evidence fractional Rights. In lieu of such fractional Rights, the Company may
pay to the Persons to which such fractional Rights would otherwise be issuable an amount in cash equal to such fraction of the
market value of a whole Right. For purposes of this Section 14(a), the market value of a whole Right is the Closing Price of the
Rights for the Trading Day immediately prior to the date that such fractional Rights would have been otherwise issuable.


 


(b)
The Company is not required to issue fractions of shares of Preferred Stock (other than fractions which are integral multiples
of one one-thousandth of a share of Preferred Stock) upon exercise of the Rights or to distribute certificates which evidence
fractional shares of Preferred Stock (other than fractions which are integral multiples of one one-thousandth of a share of Preferred
Stock). In lieu of fractional shares of Preferred Stock that are not integral multiples of one one-thousandth of a share
of Preferred Stock, the Company may pay to the registered holders of Rights Certificates at the time such Rights are exercised
as herein provided an amount in cash equal to the same fraction of the Current Market Price of one one-thousandth of a share of
Preferred Stock. For purposes of this Section 14(b), the Current Market Price of one one-thousandth of a share of Preferred Stock
is one one-thousandth of the Closing Price of a share of Preferred Stock for the Trading Day immediately prior to the date of
such exercise.


 


(c)
Following the occurrence of one of the events specified in Section 11 hereof giving rise to the right to receive Common Stock,
Common Stock Equivalents or other securities upon the exercise of a Right, the Company will not be required to issue fractions
of shares of Common Stock, Common Stock Equivalents or other securities upon exercise of the Rights or to distribute certificates
which evidence fractional shares of Common Stock, Common Stock Equivalents or other securities. In lieu of fractional shares
of Common Stock, Common Stock Equivalents or other securities, the Company may pay to the registered holders of Rights Certificates
at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the Current Market Price
of one share of Common Stock, Common Stock Equivalents or other securities. For purposes of this Section 14(c), the Current Market
Price of one share of Common Stock is the Closing Price of one share of Common Stock for the Trading Day immediately prior to
the date of such exercise.


 


(d)
The holder of a Right, by the acceptance of the Right, expressly waives such holder’s right to receive any fractional Rights
or any fractional shares upon exercise of a Right, except as permitted by this Section 14.


 


(e)
Whenever a payment for fractional Rights or fractional shares is to be made by the Rights Agent under this Agreement, the Company
shall (i) promptly prepare and deliver to the Rights Agent a certificate setting forth in reasonable detail the facts related
to such payments and the prices and formulas utilized in calculating such payments; and (ii) provide sufficient monies to the
Rights Agent in the form of fully collected funds to make such payments. The Rights Agent shall be fully protected in relying
upon such a certificate and has no duty with respect to, and will not be deemed to have knowledge of, any payment for fractional
Rights or fractional shares under any Section of this Agreement relating to the payment of fractional Rights or fractional shares
unless and until the Rights Agent has received such a certificate and sufficient monies.


 




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	Section
    15.	Rights
    of Action.


 


All
rights of action in respect of this Agreement, other than the rights of action vested in the Rights Agent hereunder, are vested
in the respective registered holders of the Rights Certificates (and, prior to the Distribution Date, the registered holders of
shares of the Common Stock); and any registered holder of a Rights Certificate (or, prior to the Distribution Date, any registered
holder of shares of the Common Stock), without the consent of the Rights Agent or of the holder of any other Rights Certificate
(or, prior to the Distribution Date, any registered holder of shares of the Common Stock), may, on such holder’s own behalf
and for such holder’s own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company
or any other Person to enforce, or otherwise act in respect of, such holder’s right to exercise the Rights evidenced by
such Rights Certificate in the manner provided in such Rights Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically acknowledged that the holders of Rights would not have
an adequate remedy at law for any breach of this Agreement by the Company and shall be entitled to specific performance of the
obligations hereunder, and injunctive relief against actual or threatened violations by the Company of the obligations hereunder
of any Person (including, without limitation, the Company) subject to this Agreement.


 


	Section
    16.	Agreement
    of Rights Holders.


 


Every
holder of a Right, by accepting such Right, consents and agrees with the Company and the Rights Agent and with every other holder
of a Right that:


 


(a)
prior to the Distribution Date, the Rights shall be evidenced by the balances indicated in the Book Entry account system of the
transfer agent for the Common Stock registered in the names of the holders of Common Stock (which Common Stock shall also be deemed
to represent certificates for Rights) or, in the case of certificated shares, the certificates for the Common Stock registered
in the names of the holders of the Common Stock (which certificates for shares of Common Stock also constitute certificates for
Rights) and each Right is transferable only in connection with the transfer of the Common Stock;


 


(b)
after the Distribution Date, the Rights Certificates shall be transferable only on the registry books of the Rights Agent if surrendered
at the office of the Rights Agent designated for such purposes, duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate forms and certificates properly completed and duly executed;


 


(c)
subject to Section 6(a) and Section 7(e) hereof, the Company and the Rights Agent may deem and treat the Person in whose name
a Rights Certificate (or, prior to the Distribution Date, the associated balance indicated in the Book Entry account system of
the transfer agent for the Common Stock, or in the case of certificated shares, by the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing
on the Rights Certificates or the associated balance indicated in the Book Entry account system of the transfer agent for the
Common Stock, or in the case of certificated shares, by the associated Common Stock certificate made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent, subject to the last sentence
of Section 7(e) hereof, shall be affected by any notice to the contrary; and


 




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(d)
notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights Agent has any liability to any
holder of a Right or any other Person as a result of the inability of the Company or the Rights Agent to perform any of its or
their obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree, judgment or
ruling (whether interlocutory or final) issued by a court of competent jurisdiction or by a governmental, regulatory, self-regulatory
or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such obligation; provided, however, the Company shall
use its best efforts to have any such injunction, order, decree, judgment or ruling lifted or otherwise overturned as promptly
as practicable.


 


	Section
    17.	Rights
    Certificate Holder Not Deemed a Stockholder.


 


No
holder, as such, of any Rights Certificate is entitled to vote, receive dividends or be deemed for any purpose the holder of the
shares of Preferred Stock or any other securities of the Company that may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights Certificate be construed to confer upon the holder of
any Rights Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors
or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or,
except as provided in Section 26 hereof, to receive notice of meetings or other actions affecting stockholders, or to receive
dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such Rights Certificate have been exercised
in accordance with the provisions hereof.


 


	Section
    18.	Duties of Rights Agent.




 


The
Rights Agent undertakes to perform only the duties and obligations expressly imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Rights Certificates, or, prior to the Distribution Date, Common
Stock, by their acceptance thereof, shall be bound:


 


(a)
Before the Rights Agent acts or refrains from acting, the Rights Agent may consult with legal counsel selected by it (who may
be legal counsel for the Company), and the advice or opinion of such counsel shall be full and complete authorization and protection
to the Rights Agent, and the Rights Agent will have no liability for or in respect of, any action taken, suffered or omitted to
be taken by the Rights Agent in the absence of bad faith and in accordance with such advice or opinion.


 




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(b)
Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including the identity of any Acquiring Person and the determination of Current Market Price) be proved or established
by the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence
in respect thereof be specified herein) may be deemed to be conclusively proved and established by a certificate signed by any
one of the President and Chief Executive Officer, Chief Financial Officer or any Senior Vice President of the Company and delivered
to the Rights Agent in accordance with Section 27 hereof; and such certificate shall be full authorization to the Rights Agent,
and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it under
the provisions of this Agreement in reliance upon such certificate.


 


(c)
The Rights Agent shall be liable hereunder to the Company and any other Person only for its own gross negligence, bad faith, or
willful misconduct (each as determined by a final, non-appealable decision of a court of competent jurisdiction). Anything to
the contrary notwithstanding, in no event shall the Rights Agent be liable for special, indirect, incidental, punitive or consequential
losses or damages (including, without limitation, lost profits), even if the Rights Agent has been advised of the likelihood of
such loss or damages, and regardless of the form of action. Anything to the contrary notwithstanding, any liability of the Rights
Agent under this Agreement will be limited to the aggregate amount of three (3) times the annual fees paid by the Company to the
Rights Agent during the twelve (12) months immediately preceding the event for which recovery from the Rights Agent is being sought.


 


(d)
The Rights Agent will not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement
or in the Rights Certificates or be required to verify the same (except as to its countersignature thereof), but all such statements
and recitals are and shall be deemed to have been made by the Company only.


 


(e)
The Rights Agent shall not have any responsibility for the validity of this Agreement or the execution and delivery hereof (except
the due execution and delivery hereof by the Rights Agent) or for the validity or execution of any Rights Certificate (except
its countersignature thereon); nor will it be responsible for any breach by the Company of any covenant or failure by the Company
to satisfy any condition contained in this Agreement or in any Rights Certificate; nor will it be responsible for any change in
the exercisability of the Rights (including, but not limited to, the Rights becoming null and void pursuant to Section 7(e) hereof)
or any change or adjustment in the terms of the Rights including, but not limited, to any adjustment required under the provisions
of Sections 11, 13, 23 or 24 hereof or for the manner, method or amount of any such change or adjustment or the ascertaining of
the existence of facts that would require any such change or adjustment (except with respect to the exercise of Rights evidenced
by Rights Certificates after receipt by the Rights Agent of the certificate describing any such adjustment contemplated by Section
12 hereof); nor will it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation
of any shares of the Common Stock, the Preferred Stock or any other securities to be issued pursuant to this Agreement or any
Rights Certificate or as to whether any shares of Common Stock, Preferred Stock or any other securities will, when so issued,
be validly authorized and issued, fully paid and non-assessable.


 




    	35



     


    

 


(f)
The Company shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all
such further acts, instruments and assurances as may reasonably be required by the Rights Agent for the performance by the Rights
Agent of its duties under this Agreement.


 


(g)
The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder
from the Chief Executive Officer, Chief Financial Officer or any Senior Vice President of the Company, and to apply to such officers
for advice or instructions in connection with its duties hereunder, and such advice or instruction shall be full authorization
to the Rights Agent and the Rights Agent shall not be liable for or in respect of any action taken, suffered or omitted to be
taken by it in accordance with such advice or instructions of any such officer.


 


(h)
The Rights Agent and any stockholder, affiliate, director, officer or employee of the Rights Agent may buy, sell or deal in any
of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may
be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though the Rights Agent were
not the Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent or any such stockholder, affiliate,
director, officer or employee from acting in any other capacity for the Company or for any other Person.


 


(i)
The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either
itself (through its directors, officers and employees) or by or through its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the
Company resulting from any such act, default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct
of the Rights Agent (in each case as determined by a final, non-appealable decision of a court of competent jurisdiction) in the
selection and continued employment thereof.


 


(j)
No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise of its rights hereunder if the Rights Agent believes
that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.


 


(k)
If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached
to the form of assignment or form of election to purchase, as the case may be, has not been properly completed, has not been signed
or indicates an affirmative response to clause 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect
to such requested exercise or transfer without first consulting with the Company; provided, however, the Rights
Agent shall not be liable for any delays arising from the duties under this Section 18(k).


 


(l)
The Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (i) any guarantee of signature
and such other documentation as the Rights Agent may reasonably request or (ii) any law, act, regulation or any interpretation
of the same even though such law, act or regulation may thereafter have been altered, changed, amended or repealed.


 




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	Section
    19.	Concerning
    the Rights Agent.


 


(a)
The Company agrees to pay to the Rights Agent such compensation as shall be agreed in writing between the Company and the Rights
Agent for all services rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and expenses and other disbursements incurred in the preparation, delivery, amendment, administration and execution
of this Agreement and the administration, exercise and performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent, its officers, employees, agents and directors for, and to hold each of them harmless against, any loss, liability,
damage, judgment, fine, penalty, claim, demand, settlement, cost or expense (including, without limitation, the reasonable fees
and expenses of legal counsel), incurred without gross negligence, bad faith or willful misconduct on the part of the Rights Agent
(in each case as determined by final, non-appealable decision of a court of competent jurisdiction), for any action taken, suffered
or omitted to be taken by the Rights Agent or such other indemnified party in connection with the acceptance, administration,
exercise and performance of its duties under this Agreement, including, but not limited to, the costs and expenses of defending
against any claim hereunder. The costs and expenses incurred in enforcing this right of indemnification shall be paid by the Company
to the extent that the Rights Agent is successful in so enforcing its rights of indemnification. The provisions of this Section
19 and Section 18 above shall survive the termination of this Agreement, the exercise or expiration of the Rights, and the resignation,
replacement or removal of the Rights Agent.


 


(b)
The Rights Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered
or omitted by it in connection with its administration of this Agreement or the exercise of its duties hereunder in reliance upon
any Rights Certificate or certificate for shares of Preferred Stock or any balance indicated in the Book Entry account system
of the transfer agent or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement or other paper or document believed by it to be genuine
and to be signed and executed by the proper person or persons.


 


	Section
    20.	Merger
    or Consolidation or Change of Name of Rights Agent.


 


(a)
Any Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any
Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or
any Person succeeding to the stockholder services businesses of the Rights Agent or any successor Rights Agent, shall be the successor
to the Rights Agent under this Agreement without the execution or filing of any document or any further act on the part of any
of the parties hereto; provided, however, that such Person would be eligible for appointment as a successor Rights
Agent under the provisions of Section 21 hereof. The purchase of all or substantially all of the Rights Agent’s assets employed
in the performance of transfer agent activities shall be deemed a merger or consolidation for purposes of this Section 20. In
case at the time such successor Rights Agent shall succeed to the agency created by this Agreement, any of the Rights Certificates
shall have been countersigned but not delivered, any such successor Rights Agent may adopt the countersignature of a predecessor
Rights Agent and deliver such Rights Certificates so countersigned; and in case at that time any of the Rights Certificates shall
not have been countersigned, any successor Rights Agent may countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.


 




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(b)
In case at any time the name of the Rights Agent shall be changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature under its prior name and deliver Rights Certificates
so countersigned; and in case at that time any of the Rights Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name or in its changed name; and in all such cases such Rights Certificates
shall have the full force provided in the Rights Certificates and in this Agreement.


 


	Section
    21.	Change
    of Rights Agent.


 


The
Rights Agent or any successor Rights Agent may resign and be discharged from its duties under this Agreement upon thirty (30)
days’ prior notice in writing mailed to the Company in accordance with Section 27 hereof, and, if known to the Rights Agent,
to each transfer agent of the Preferred Stock and the Common Stock, by registered or certified mail, in which case the Company
shall give or cause to be given written notice to the registered holders of the Rights Certificates by first-class mail. The Company
may remove the Rights Agent or any successor Rights Agent upon thirty (30) days’ prior notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to each transfer agent of the Common Stock and the Preferred Stock
by registered or certified mail, and to the registered holders of the Rights Certificates by first-class mail. In the event a
transfer agency relationship in effect between the Company and the Rights Agent terminates, the Rights Agent will be deemed to
have resigned automatically and be discharged from its duties under this Agreement as of the effective date of such termination,
and the Company shall be responsible for sending any required notice. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of thirty (30) days after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Rights Certificate
(who shall, with such notice, submit his Rights Certificate for inspection by the Company), then any registered holder of any
Rights Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be (a) a Person organized and doing business under the laws
of the United States or any state of the United States, in good standing, is authorized under such laws to exercise corporate
trust, stock transfer, or stockholder services powers, is be subject to supervision or examination by federal or state authorities,
and has at the time of its appointment as Rights Agent a combined capital and surplus of at least $50,000,000 or (b) an Affiliate
of a Person described in clause (a) of this sentence. After appointment, the successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights Agent any property at the time held by it hereunder,
and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose; but such predecessor Rights
Agent shall not be required to make any additional expenditure or assume any additional liability in connection with the foregoing.
Not later than the effective date of any such appointment, the Company shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Stock and the Preferred Stock, and mail a notice thereof in writing to the
registered holders of the Rights Certificates by first-class mail. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Rights Agent or
the appointment of the successor Rights Agent.


 




    	38



     


    

 


	Section
    22.	Issuance
    of New Rights Certificates.


 


Notwithstanding
any of the provisions of this Agreement or the Rights Certificates to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be approved by the Board to reflect any adjustment or change made in
accordance with the provisions of this Agreement in the Purchase Price or the number or kind or class of shares or other securities
or property that may be acquired under the Rights Certificates. In addition, in connection with the issuance or sale of shares
of Common Stock following the Distribution Date (other than upon exercise of a Right) and prior to the earlier of redemption or
the Expiration Date, the Company (a) shall, with respect to shares of Common Stock so issued or sold pursuant to the exercise
of stock options or under any employee plan or arrangement, or upon the exercise, conversion or exchange of securities hereinafter
issued by the Company, and (b) may, in any other case, if deemed necessary or appropriate by the Board, issue Rights Certificates
representing the appropriate number of Rights in connection with such issuance or sale; provided, however, that
(i) no such Rights Certificate may be issued if, and to the extent that, the Company, in its sole and absolute discretion, determines
that such issuance would jeopardize or endanger the value or availability to the Company of the Tax Benefits or otherwise create
a significant risk of material adverse tax consequences to the Company or the Person to whom such Rights Certificate would be
issued, and (ii) no such Rights Certificate may be issued if, and to the extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.


 


	Section
    23.	Redemption.


 


(a)
The Board may, within its sole and absolute discretion, at any time before the Distribution Date (the “Redemption
Period”) cause the Company to redeem all, but not less than all, of the then-outstanding Rights at a redemption
price of $0.001 per Right, as such amount may be appropriately adjusted to reflect any stock split, reverse stock split, stock
dividend or similar transaction occurring after the date hereof (such redemption price, as adjusted, being hereinafter referred
to as the “Redemption Price”). Notwithstanding anything contained in this Agreement to the contrary,
the Rights will not be exercisable after the Section 11(a)(ii) Event or the first occurrence of a Section 13 Event until such
time as the Company’s right of redemption hereunder has expired. Any such redemption will be effective immediately upon
the action of the Board authorizing the same, unless such action of the Board expressly provides that such redemption will be
effective at a subsequent time or upon the occurrence or nonoccurrence of one or more specified events (in which case such redemption
will be effective in accordance with the provisions of such action of the Board). The Company may, at its option, pay the Redemption
Price in cash, shares of Common Stock based on the Current Market Price or any other form of consideration as determined by the
Board.


 




    	39



     


    

 


(b)
Immediately upon the action of the Board ordering the redemption of the Rights pursuant to paragraph (a) of this Section 23 (or
such later time as the Board may establish for the effectiveness of such redemption), and without any further action and without
any notice, the right to exercise the Rights will terminate and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price for each Right held. The Company shall promptly give (i) written notice to the Rights Agent of any
such redemption; and (ii) public notice of any such redemption; provided, however, that the failure to give, or
any defect in, any such notice will not affect the validity of such redemption. Within ten (10) days after such action of the
Board ordering the redemption of the Rights, the Company shall mail a notice of redemption to all the holders of the then-outstanding
Rights at their last addresses as they appear upon the registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the transfer agent for the Common Stock. Any notice that is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each such notice of redemption will state the method by which
the payment of the Redemption Price shall be made. Neither the Company nor any of its Related Persons may redeem, acquire or purchase
for value any Rights at any time in any manner other than that specifically set forth in this Section 23 or in Section 24 hereof,
or other than in connection with the purchase of shares of Common Stock or the conversion or redemption of shares of Common Stock
in accordance with the applicable provisions of the Certificate of Incorporation prior to the Distribution Date.


 


	Section
    24.	Exchange.


 


(a)
The Board may, at its option, at any time after any Person becomes an Acquiring Person, exchange all or part of the then-outstanding
and exercisable Rights (which shall not include Rights that have become null and void pursuant to the provisions of Section 7(e)
hereof) for shares of Common Stock at an exchange ratio of one share of Common Stock per each outstanding Right, as appropriately
adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the date hereof
(such exchange ratio being hereinafter referred to as the “Exchange Ratio”). Notwithstanding the foregoing,
the Board is not empowered to effect such exchange at any time after any Acquiring Person, together with all of its Related Persons,
becomes the Beneficial Owner of 50% or more of the shares of Common Stock then-outstanding. The exchange of the Rights by the
Board may be made effective at such time, on such basis and with such conditions as the Board in its sole and absolute discretion
may establish. From and after the occurrence of a Section 13 Event, any Rights that theretofore have not been exchanged pursuant
to this Section 24(a) will thereafter be exercisable only in accordance with Section 13 hereof and may not be exchanged pursuant
to this Section 24(a).


 


(b)
Immediately upon the action of the Board ordering the exchange of any Rights pursuant to paragraph (a) of this Section 24 and
without any further action or notice, the right to exercise such Rights will terminate and the only right thereafter of a holder
of such Rights shall be to receive a number of shares of Common Stock equal to the number of such Rights held by such holder multiplied
by the Exchange Ratio; provided, however, that in connection with any exchange effected pursuant to this Section
24(b), no holder of Rights shall be entitled to receive Common Stock (or other shares of capital stock of the Company) that would
result in such holder, together with such holder’s Related Persons, becoming the Beneficial Owner of more than 4.95% of
the then-outstanding Common Stock. If (x) a holder would, but for the proviso in the immediately preceding sentence, be entitled
to receive Excess Shares upon the exchange of any Rights and (y) the Board, in its sole and absolute discretion, makes a determination
that such holder’s receipt of Excess Shares would jeopardize or endanger the value or availability to the Company of the
Tax Benefits or the Board otherwise determines, in its sole and absolute discretion, that such holder’s receipt of Excess
Shares is not in the best interests of the Company, then in lieu of receiving such Excess Shares and to the extent permitted
by law or orders applicable to the Company, such holder will only be entitled to receive an amount in cash or, at the election
of the Company, a note or other evidence of indebtedness maturing within nine (9) months with a principal amount, equal to the
current per share Current Market Price of a share of Common Stock at the Close of Business on the Trading Day following the date
the Board effects the forgoing exchange multiplied by the number of Excess Shares that would otherwise have been issuable to such
holder. The Company shall promptly give (i) written notice to the Rights Agent of any such exchange; and (ii) public notice of
any such exchange; provided, however, that the failure to give, or any defect in, such notice will not affect the
validity of such exchange. The Company promptly shall mail a notice of any such exchange to all of the holders of such Rights
at their last addresses as they appear upon the registry books of the Rights Agent. Any notice that is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice. Each such notice of exchange will state the method
by which the exchange of the shares of Common Stock for Rights shall be effected and, in the event of any partial exchange, the
number of Rights that shall be exchanged. Any partial exchange shall be effected pro rata based on the number of Rights
(other than Rights that have become null and void pursuant to the provisions of Section 7(e) hereof) held by each holder of Rights.


 




    	40



     


    

 


(c)
The Company may at its option substitute, and, in the event that there shall not be sufficient shares of Common Stock issued but
not outstanding or authorized but unissued to permit an exchange of Rights for Common Stock as contemplated in accordance with
this Section 24, the Company shall, either (x) take all such action as may be necessary to authorize additional shares of Common
Stock for issuance upon exchange of the Rights or (y) substitute to the extent of such insufficiency, for each share of Common
Stock that would otherwise be issuable upon exchange of a Right, a number of shares of Preferred Stock or fraction thereof (or
Equivalent Preferred Stock, as such term is defined in Section 11(b)) such that the Current Market Price of one share of Preferred
Stock (or Equivalent Preferred Stock) multiplied by such number or fraction is equal to the Current Market Price of one share
of Common Stock as of the date of such exchange.


 


(d)
Upon declaring an exchange pursuant to this Section 24, or as promptly as reasonably practicable thereafter, the Company may implement
such procedures as it deems appropriate, in its sole and absolute discretion, for the purpose of ensuring that the Common Stock
(or such other consideration) issuable upon an exchange pursuant to this Section 24 is not received by holders of Rights that
have become null and void pursuant to Section 7(e) hereof. Before effecting an exchange pursuant to this Section 24, the Board
may direct the Company to enter into a Trust Agreement in such form and with such terms as the Board shall then approve (the “Trust
Agreement”). If the Board so directs, the Company shall enter into the Trust Agreement and the Company shall issue
to the trust created by the Trust Agreement (the “Trust”) all or a portion (as designated by the Board)
of the shares of Common Stock and other securities, if any, distributable pursuant to the exchange, and all stockholders entitled
to distribution of such shares or other securities (and any dividends or distributions made thereon after the date on which such
shares or other securities are deposited in the Trust) shall be entitled to receive a distribution of such shares or other securities
(and any dividends or distributions made thereon after the date on which such shares or other securities are deposited in the
Trust) only from the Trust and solely upon compliance with all relevant terms and provisions of the Trust Agreement. Prior to
effecting an exchange and registering shares of Common Stock (or other such securities) in any Person’s name, including
any nominee or transferee of a Person, the Company may require (or cause the trustee of the Trust to require), as a condition
thereof, that any holder of Rights provide evidence, including, without limitation, the identity of the Beneficial Owners thereof
and their Related Persons (or former Beneficial Owners thereof and their Related Persons) as the Company reasonably requests in
order to determine if such Rights are null and void. If any Person fails to comply with such request, the Company shall be entitled
conclusively to deem the Rights formerly held by such Person to be null and void pursuant to Section 7(e) hereof and not transferable
or exercisable or exchangeable in connection herewith. Any shares of Common Stock or other securities issued at the direction
of the Board in connection herewith shall be validly issued, fully paid and nonassessable shares of Common Stock or of such other
securities (as the case may be), and the Company shall be deemed to have received as consideration for such issuance a benefit
having a value that is at least equal to the aggregate par value of the shares so issued.


 




    	41



     


    

 


	Section
    25.	Process
    to Seek Exemption.


 


Any
Person who desires to effect any acquisition of Common Stock that might, if consummated, result in such Person Beneficially Owning
4.95% or more of the then-outstanding Common Stock (or, in the case of a Grandfathered Person, an additional share of Common Stock)
(a “Requesting Person”) may request that the Board grant an exemption with respect to such acquisition
under this Agreement so that such Person would be deemed to be an “Exempt Person” for purposes of this Agreement (an
“Exemption Request”). An Exemption Request shall be in proper form and shall be delivered by registered
mail, return receipt requested, to the Corporate Secretary of the Company at the principal executive office of the Company. The
Exemption Request shall be deemed made upon receipt by the Corporate Secretary of the Company. To be in proper form, an Exemption
Request shall set forth (i) the name and address of the Requesting Person, (ii) the number and percentage of shares of Common
Stock then Beneficially Owned by the Requesting Person, together with all Related Persons of the Requesting Person, and (iii)
a reasonably detailed description of the transaction or transactions by which the Requesting Person would propose to acquire Beneficial
Ownership of Common Stock aggregating 4.95% or more of the then-outstanding Common Stock and the maximum number and percentage
of shares of Common Stock that the Requesting Person proposes to acquire. The Board shall endeavor to respond to an Exemption
Request within twenty (20) Business Days after receipt of such Exemption Request; provided, that the failure of the Board
to make a determination within such period shall be deemed to constitute the denial by the Board of the Exemption Request. The
Requesting Person shall respond promptly to reasonable and appropriate requests for additional information from the Company or
the Board and its advisors to assist the Board in making its determination. The Board shall grant an exemption in response to
an Exemption Request only if the Board, in its sole and absolute discretion, determines that the acquisition of Beneficial Ownership
of Common Stock by the Requesting Person will not jeopardize or endanger the value or availability to the Company of the Tax Benefits
or the Board otherwise determines, in its sole and absolute discretion, that the exemption is in the best interests of the Company.
Any exemption granted hereunder may be granted in whole or in part, and may be subject to limitations or conditions (including
a requirement that the Requesting Person agree that it will not acquire Beneficial Ownership of shares of Common Stock in excess
of the maximum number and percentage of shares approved by the Board), in each case as and to the extent the Board determines
is necessary or desirable to provide for the protection of the Tax Benefits or the Board otherwise determines is in the best interests
of the Company. Any Exemption Request may be submitted on a confidential basis and, except to the extent required by applicable
law, the Company shall maintain the confidentiality of such Exemption Request and determination of the Board with respect thereto,
unless the information contained in the Exemption Request or the determination of the Board with respect thereto otherwise becomes
publicly available. The Exemption Request shall be considered and evaluated by the Board.


 




    	42



     


    

 


	Section
    26.	Notice
    of Certain Events.


 


(a)
In case the Company proposes, at any time after the earlier of the Distribution Date or the Stock Acquisition Date, (i) to pay
any dividend payable in stock of any class or series to the holders of Preferred Stock or to make any other distribution to the
holders of Preferred Stock (other than a regular quarterly cash dividend out of earnings or retained earnings of the Company);
(ii) to offer to the holders of Preferred Stock rights or warrants to subscribe for or to purchase any additional shares of Preferred
Stock or shares of stock of any class or any other securities, rights or options; (iii) to effect any reclassification of Preferred
Stock (other than a reclassification involving only the subdivision of outstanding shares of Preferred Stock); (iv) to effect
any consolidation or merger into or with any other Person (other than a Subsidiary of the Company in a transaction which is not
prohibited by Section 11(n) hereof) or to effect any sale or other transfer (or to permit one or more of its Subsidiaries to effect
any sale or other transfer), in one or more transactions, of more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or
more transactions none of which is prohibited by Section 11(n) hereof); or (v) to effect the liquidation, dissolution or winding
up of the Company, then, in each such case, the Company shall give the Rights Agent and to each registered holder of a Rights
Certificate in accordance with Section 27 hereof, a written notice of such proposed action, which shall specify the record date
for the purposes of such stock dividend, distribution of rights or warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution or winding up is to take place and the date of participation therein by the holders
of the shares of Preferred Stock if any such date is to be fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least ten (10) days prior to the record date for determining holders of the shares of Preferred
Stock for purposes of such action and, in the case of any such other action, at least ten (10) days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of the shares of Preferred Stock, whichever is earlier;
provided, however, that no such action shall be taken pursuant to this Section 26(a) that will or would conflict
with any provision of the Certificate of Incorporation; provided, further, that no such notice is required pursuant
to this Section 26 if any Subsidiary of the Company effects a consolidation or merger with or into, or effects a sale or other
transfer of assets or earning power to, any other Subsidiary of the Company. The failure to give notice required by this Section
26 or any defect therein shall not affect the legality or validity of the action taken by the Company or the vote upon any such
action.


 


(b)
In case any Section 11(a)(ii) Event occurs, (i) the Company shall, as soon as practicable thereafter, give to each registered
holder of a Rights Certificate, to the extent feasible, and to the Rights Agent in accordance with Section 27 hereof, a written
notice of the occurrence of such event, which notice shall describe such event and the consequences of such event to holders of
Rights under Section 11(a)(ii) hereof; and (ii) all references in paragraph (a) of this Section 26 to Preferred Stock shall be
deemed thereafter to refer to Common Stock and/or, if appropriate, to any other securities that may be acquired upon exercise
of a Right.


 




    	43



     


    

 


(c)
In case any Section 13 Event occurs, then the Company shall, as soon as practicable thereafter, give to each registered holder
of a Rights Certificate, to the extent feasible, and to the Rights Agent in accordance with Section 27 hereof, a written notice
of the occurrence of such event, which notice shall describe such event and the consequences of such event to holders of Rights
under Section 13(a) hereof.


 


	Section
    27.	Notices.


 


Notices
or demands authorized by this Agreement to be given or made by the Rights Agent or by the holder of any Rights Certificate to
or on the Company shall be sufficiently given or made if sent by first-class or express United States mail, FedEx or UPS, postage
prepaid and properly addressed (until another address is filed in writing by the Company with the Rights Agent) or in the form
of an electronic transmission (confirmation of receipt requested) as follows:


 


If
to the Company, at its address at:


 


CytRx
Corporation


11726
San Vicente Blvd, Suite 650


Los
Angeles, California 90049


Attention:
Chief Executive Officer


Email:
stevenk@cytrx.com


 


with
a copy to:


 


Vinson
& Elkins L.L.P.

1114 Avenue of the Americas, 32nd Floor

New York, NY 10036

Attention: Lawrence S. Elbaum


Email:
lelbaum@velaw.com


 


Subject
to the provisions of Section 21 hereof, any notice or demand authorized by this Agreement to be given or made by the Company or
by the holder of any Rights Certificate to or on the Rights Agent shall be sufficiently given or made if sent in writing by first-class
or express United States mail, FedEx or UPS, postage prepaid or overnight delivery service and properly addressed (until another
address is filed in writing by the Rights Agent with the Company) or in the form of an electronic transmission (confirmation of
receipt requested) as follows:


 


American
Stock Transfer & Trust Company, LLC


6201
15th Avenue


Brooklyn,
New York 11219


Attention:
Tamara Cajuste


Email:
tcajuste@astfinancial.com


 




    	44



     


    

 


Notices
or demands authorized by this Agreement to be given or made by the Company or the Rights Agent to the holder of any Rights Certificate
(or, if prior to the Distribution Date, the registered holder of any shares of Common Stock) shall be sufficiently given or made
if sent in writing by first-class or express United States mail, FedEx or UPS, postage prepaid or overnight delivery service and
properly addressed, to such holder at the address of such holder as shown on the registry books of the Company.


 


	Section
    28.	Supplements
    and Amendments.


 


Except
as otherwise provided in this Section 28, the Company, by action of the Board, may from time to time and in its sole and absolute
discretion, and the Rights Agent shall if the Company so directs, supplement or amend this Agreement in any respect without the
approval of any holders of Rights, including, without limitation, in order to (a) cure any ambiguity; (b) correct or supplement
any provision contained herein that may be defective or inconsistent with any other provisions herein; (c) shorten or lengthen
any time period hereunder, including, without limitation, the Expiration Date; or (d) otherwise change, amend, or supplement any
provisions hereunder in any manner that the Company may deem necessary or desirable; provided, however, that from
and after the time that any Person becomes an Acquiring Person, this Agreement may not be supplemented or amended in any
manner that would (i) adversely affect the interests of the holders of Rights (other than holders of Rights that have become null
and void pursuant to Section 7(e) hereof) as such, (ii) cause the Rights again to become redeemable or (iii) cause this Agreement
to become amendable other than in accordance with this Section 28. Without limiting the foregoing, the Company, by action of the
Board, may at any time before any Person becomes an Acquiring Person amend this Agreement to make the provisions of this Agreement
inapplicable to a particular transaction by which a Person might otherwise become an Acquiring Person or to otherwise alter the
terms and conditions of this Agreement as they may apply with respect to any such transaction. Upon the delivery of a certificate
from an appropriate officer of the Company that states that the proposed supplement or amendment is in compliance with the terms
of this Section 28, the Rights Agent shall execute such supplement or amendment.


 


Notwithstanding
anything in this Agreement to the contrary, the Rights Agent shall not be required to execute any supplement or amendment to this
Agreement that it has determined would adversely affect its own rights, duties, obligations or immunities under this Agreement.
The Rights Agent acknowledges that time is of the essence in connection with its execution of any such proposed supplement or
amendment. Any failure to execute such proposed supplement or amendment shall not affect the validity of the actions taken by
the Board pursuant to this Section 28.


 


Prior
to the Distribution Date, the interests of the holders of Rights shall be deemed coincident with the interests of the holders
of Common Stock.


 


	Section
    29.	Successors.


 


All
the covenants and provisions of this Agreement by or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.


 




    	45



     


    

 


	Section
    30.	Determinations
    and Actions by the Board.


 


For
all purposes of this Agreement, any calculation of the number of shares of Common Stock or any other class of capital stock outstanding
at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act or Section 382 of the Code and the Treasury Regulations promulgated thereunder,
as applicable. Except as otherwise specifically provided herein, the Board has the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically granted to the Board or to the Company hereunder, or as may
be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power (a) to interpret
the provisions of this Agreement, and (b) to make all determinations deemed necessary or advisable for the administration of this
Agreement (including, without limitation, a determination to redeem or not redeem the Rights in accordance with Section 23 hereof,
to exchange or not exchange the rights in accordance with Section 24 hereof, to amend or not amend this Agreement in accordance
with Section 28 hereof; provided that such supplement or amendment does not adversely affect the rights, duties, obligations or
immunities of the Rights Agent under this Agreement). All such actions, calculations, interpretations and determinations (including,
for purposes of clause (ii) below, all omissions with respect to the foregoing) that are done or made by the Board shall be (i)
be final, conclusive, and binding on the Company, the Rights Agent, the holders of the Rights and all other parties; and (ii)
not subject the Board or any member thereof to any liability to the holders of the Rights. The Rights Agent is entitled always
to assume that the Board acted in good faith and shall be fully protected and incur no liability in reliance thereon.


 


	Section
    31.	Benefits
    of this Agreement.


 


Nothing
in this Agreement may be construed to give to any Person other than the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date, the registered holders of shares of the Common Stock of the Company)
any legal or equitable right, remedy or claim under this Agreement; rather, this Agreement is for the sole and exclusive benefit
of the Company, the Rights Agent and the registered holders of the Rights Certificates (and, prior to the Distribution Date, the
registered holders of shares of Common Stock of the Company).


 


	Section
    32.	Severability.


 


If
any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, null and void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect and will in no way be affected, impaired or invalidated; provided, however,
that notwithstanding anything in this Agreement to the contrary, if any such term, provision, covenant or restriction is held
by such court or authority to be invalid, null and void or unenforceable and the Board determines in good faith judgment that
severing the invalid language from this Agreement would materially and adversely affect the purpose or effect of this Agreement,
the right of redemption set forth in Section 23 hereof shall be reinstated and will not expire until the Close of Business on
the tenth (10th) Business Day following the date of such determination by the Board; provided, further, that if any such severed
term, provision, covenant or restriction shall adversely affect the rights, immunities, duties or obligations of the Rights Agent,
then the Rights Agent shall be entitled to resign immediately upon written notice to the Company.


 




    	46



     


    

 


	Section
    33.	Governing
    Law.


 


This
Agreement, each Right and each Rights Certificate issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable
to contracts to be made, without reference to its conflicts of law principles, and performed entirely within such State.


 


	Section
    34.	Counterparts.


 


This
Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument.
A signature to this Agreement transmitted electronically shall have the same authority, effect and enforceability as an original
signature.


 


	Section
    35.	Descriptive
    Headings.


 


The
headings contained in this Agreement are for descriptive purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. For purposes of this Agreement, whenever a specific provision of the Code or a specific Treasury Regulation
is referenced, such reference shall also apply to any successor or replacement provision or Treasury Regulation, as applicable.


 


	Section
    36.	Force
    Majeure.


 


Notwithstanding
anything to the contrary contained herein, the Rights Agent will not incur any liability for not performing, or a delay in the
performance of, any act, duty, obligation or responsibility by reason of any occurrence beyond the reasonable control of the Rights
Agent (including, without limitation, any act or provision of any present or future law or regulation or governmental authority,
any act of God, war, civil or military disobedience or disorder, riot, rebellion, terrorism, pandemic, insurrection, fire, earthquake,
storm, flood, strike, work stoppage, labor dispute, accident or failure or malfunction of any utilities, communication or computer
(software or hardware) services or similar occurrence).


 


	Section
    37.	Tax
    Compliance and Withholding.


 


The
Company hereby authorizes the Rights Agent to deduct from all payments disbursed by the Rights Agent to the holders of the Rights,
if applicable, the tax required to be withheld pursuant to Sections 1441, 1442, 1445, 1471 through 1474, and 3406 of the Code
or by any federal or state statutes subsequently enacted, and to make the necessary returns and payments of such tax to the relevant
taxing authority. The Company will provide withholding and reporting instructions to the Rights Agent from time to time as relevant,
and upon request of the Rights Agent.


 


(Signature
Page To Follow On Next Page)


 




    	47



     


    

 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the date first above written.


 


	 	CYTRX
    CORPORATION,
	 	as
    the Company
	 	 
	 	By:	/s/
    Steven A. Kriegsman 
	 	Name:	Steven A. Kriegsman
	 	Title:	Chief
    Executive Officer
	 	 
	 	AMERICAN
    STOCK TRANSFER & TRUST COMPANY,
    LLC,
	 	as
    Rights Agent
	 	 
	 	By:	/s/ Michael
    A. Nespoli
	 	Name:	Michael A. Nespoli
	 	Title:	Executive Director


 


Signature
Page to Rights Agreement


 




    	 



     


    

 


Exhibit
A


 


Amended
and Restated Certificate of Designation of


Series
B Junior Participating Preferred Stock of CytRx Corporation


 




    	A-1



     


    

 


AMENDED
AND RESTATED


CERTIFICATE
OF DESIGNATION


OF


SERIES
B JUNIOR PARTICIPATING PREFERRED STOCK


OF


CYTRX
CORPORATION


 





 



 


Pursuant
to Section 151 of the


General
Corporation Law of


the
State of Delaware


 





 



 


CytRx
Corporation, a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “Company”),
DOES HEREBY CERTIFY:


 


That,
pursuant to authority conferred by the Restated Certificate of Incorporation of the Company, as amended, and as may be amended
or restated from time to time (the “Certificate of Incorporation”), and in accordance with the provisions
of Section 151 of the General Corporation Law of the State of Delaware (the “DGCL”), the Company hereby
certifies that the following resolution was adopted by the Board of Directors of the Company (the “Board”),
at a duly called meeting held on November 16, 2020, at which a quorum was present and acted throughout, adopted the following
resolutions, which resolutions remain in full force and effect on the date hereof:


 


WHEREAS,
the Board is authorized to issue from time to time shares of the Company’s preferred stock, par value $0.01 per share, of
the Company (the “Preferred Stock”);


 


WHEREAS,
the Board previously adopted a resolution authorizing the creation and issuance of a series of Preferred Stock designated as the
“Series B Junior Participating Preferred Stock” (the “Original Series B Preferred Stock”),
having the voting powers, designation, preferences and relative, participating, optional and other special rights, and qualifications,
limitations and restrictions as set forth in the Certificate of Designation that was filed with the Secretary of State of Delaware
on December 18, 2019 (the “Original Certificate of Designation”); and


 


WHEREAS,
no shares of the Original Series B Preferred Stock have been issued.


 


RESOLVED,
that pursuant to the authority vested in the Board in accordance with the provisions of the Certificate of Incorporation and Section
151(g) of the DGCL, the Board does hereby amend and restate the Original Certificate of Designation regarding the voting powers,
designation, preferences and relative, participating, optional and other special rights, and qualifications, limitations and restrictions
thereof that are set forth as follows:


 


Section
1. Designation and Amount. The shares of such series shall be designated as the “Series B Junior Participating Preferred
Stock” (the “Series B Preferred Stock”) and the number of shares constituting such series shall
be fifty thousand (50,000) shares. Such number of shares may be increased or decreased by resolution of the Board, provided,
however that no such decrease shall reduce the number of shares of the Series B Preferred Stock to a number less than the
number of shares then outstanding, plus the number of shares reserved for issuance upon the exercise of outstanding options, rights
or warrants, or upon conversion of any outstanding securities issued by the Company convertible into Series B Preferred Stock.


 




    	A-2



     


    

 


Section
2. Dividends and Distributions.


 


(A)
Subject to the prior and superior rights of the
holders of any shares of any other class or series of Preferred Stock ranking prior and superior to the shares of Series B Preferred
Stock with respect to dividends, each holder of a share (a “Share”) of Series B Preferred Stock shall
be entitled to receive, in preference to the holders of the common stock, par value $0.001 per share (the “Common
Stock”), and of any other Junior Stock (as defined below), shall be entitled to receive, when, as and if declared
by the Board out of funds legally available for that purpose, (i) quarterly dividends payable in cash on the last day of February,
May, August, and December in each year (each such date being a “Quarterly Dividend Payment Date”), commencing
on the first Quarterly Dividend Payment Date after the first issuance of such Share of Series B Preferred Stock, in an amount
per Share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision for adjustment hereinafter
set forth, 1,000 times the aggregate per share amount of all cash dividends declared on shares of the Common Stock since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance
of a Share of Series B Preferred Stock, and (ii) subject to the provision for adjustment hereinafter set forth, quarterly distributions
(payable in kind) on each Quarterly Dividend Payment Date in an amount per Share equal to 1,000 times the aggregate per share
amount of all non-cash dividends or other distributions (other than a dividend payable in shares of Common Stock or a subdivision
of the outstanding shares of Common Stock, by reclassification or otherwise) declared on shares of Common Stock since the immediately
preceding Quarterly Dividend Payment Date, or with respect to the first Quarterly Dividend Payment Date, since the first issuance
of a Share of Series B Preferred Stock. In the event that the Company shall at any time after the Rights Dividend Declaration
Date (as that term is defined in the Amended and Restated Rights Agreement dated November 16, 2020, by and between the Company
and American Stock Transfer & Trust Company, LLC (the “Rights Agreement)) (x) declare or pay any dividend
on the outstanding shares of Common Stock payable in shares of Common Stock or (y) effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which the holder of a Share
of Series B Preferred Stock was entitled immediately prior to such event pursuant to clause (b) or clause (ii) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the numerator of which shall be the number of shares of Common
Stock that are outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.


 


(B)
The Company shall declare a dividend or distribution
on Shares of Series B Preferred Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution
on the shares of Common Stock (other than a dividend or distribution payable in shares of Common Stock).


 




    	A-3



     


    

 


(C)
Dividends shall begin to accrue and shall be
cumulative on each outstanding Share of Series B Preferred Stock from the Quarterly Dividend Payment Date next preceding the date
of issuance of such Share of Series B Preferred Stock, unless the date of issuance of such Share is prior to the record date for
the first Quarterly Dividend Payment Date, in which case, dividends on such Share shall begin to accrue from the date of issuance
of such Share, or unless the date of issuance is a Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of Shares of Series B Preferred Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on Shares of Series B Preferred Stock in an
amount less than the aggregate amount of all such dividends at the time accrued and payable on such Shares shall be allocated
pro rata on a share-by-share basis among all Shares of Series B Preferred Stock at the time outstanding. The Board may fix a record
date for the determination of holders of Shares of Series B Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 60 days prior to the date fixed for the payment thereof.


 


Section
3. Voting Rights. The holders of Shares of Series B Preferred Stock shall have the following voting rights:


 


(A)
Subject to the provision for adjustment hereinafter
set forth, each Share of Series B Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to
a vote of the holders of Common Stock of the Company. In the event the Company shall at any time after the Rights Dividend Declaration
Date (i) declare or pay any dividend on outstanding shares of Common Stock payable in shares of Common Stock or (ii) effect a
subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such
case the number of votes per Share to which holders of Shares of Series B Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that
were outstanding immediately prior to such event.


 


(B)
Except as otherwise provided herein or in any
other certificate of designation creating a series of Preferred Stock, or any similar stock, or by law, the holders of Shares
of Series B Preferred Stock, the holders of shares of Common Stock, and the holders of any other class or series of capital stock
of the Company entitled to vote generally, together with the Common Stock, shall vote together as one class on all matters submitted
to a vote of the holders of such stock.


 




    	A-4



     


    

 


(C)
(i) If at any time dividends on any Shares of
Series B Preferred Stock shall be in arrears in an amount equal to six quarterly dividends thereon, then the number of Directors
constituting the Board shall automatically be increased by two, and during the period (a “default period”)
from the occurrence of such event until such time as all accrued and unpaid dividends for all previous quarterly dividend periods
and for the current quarterly dividend period on all Shares of Series B Preferred Stock then outstanding shall have been declared
and paid, the holders of the outstanding Shares of Series B Preferred Stock, together with the holders of outstanding shares of
any one or more other series of Preferred Stock upon which like voting rights have been conferred and are exercisable (voting
together as a single class), shall have the right to elect two Directors to the Board at the Company’s next annual meeting
of stockholders, and so long as such default period continues, shall have the right to elect a successor to each of the two Directors
so elected upon the expiration of their respective terms, such right to be exercised at the subsequent annual meeting or meetings
at which the respective terms of such Directors expire. Any Director who shall have been so elected pursuant to this paragraph
may be removed only for cause. Each such additional Director shall not be a member of any class of the Board, but shall serve
until the next annual meeting of stockholders for the election of Directors, or until his successor shall be elected and shall
qualify, or until his right to hold such office terminates pursuant to the provisions of this Section 3(C). If the office of any
Director elected by the holders of Shares of Series B Preferred Stock pursuant to this paragraph becomes vacant for any reason,
the remaining Director elected pursuant to this paragraph may choose a successor who shall hold office for the unexpired term
in respect of which such vacancy occurred, and if the offices of both such Directors elected by the holders of Shares of Series
B Preferred Stock pursuant to this paragraph become vacant for any reason, such vacancies may be filled for the unexpired term
in respect of which such vacancy occurred only by the affirmative vote of the holders of the outstanding Shares of Series B Preferred
Stock, together with the holders of the outstanding shares of any other series of Preferred Stock upon which like voting rights
have been conferred and are exercisable (voting together as a single class).


 


(ii)
The voting rights vested pursuant to paragraph
(C)(i) hereof in the holders of the outstanding Shares of Series B Preferred Stock, together with the holders of outstanding shares
of any one or more other series of Preferred Stock upon which like voting rights have been conferred and are exercisable (voting
together as a single class), may not be exercised at any meeting of stockholders unless the holders of at least a majority in
voting power of the outstanding shares of Preferred Stock upon which such voting rights have been conferred shall be present at
such meeting in person or by proxy. The absence of a quorum of the holders of Common Stock shall not affect the exercise by the
holders of Shares of Series B Preferred Stock of such rights. In connection with the election of Directors pursuant to paragraph
(C)(i) hereof, each holder of Shares of Series B Preferred Stock shall be entitled to one vote for each one one-thousandth of
a Share held (the holders of shares of any other series of Preferred Stock having like voting rights being entitled to such number
of votes, if any, for each share of such stock held as may be granted to them).


 


(iii)
The voting rights granted by this Section 3(C)
shall be in addition to any other voting rights granted to the holders of the Series B Preferred Stock in this Section 3.


 


(iv)
Immediately upon the expiration of a default
period, (x) the right of the holders of Shares of Series B Preferred Stock to elect Directors pursuant to paragraph (C)(i) hereof
shall cease (subject to re-vesting in the event of each and every subsequent default of the character mentioned in paragraph (C)(i)
above), (y) the term of any Directors elected by the holders of Shares of Series B Preferred Stock pursuant to paragraph (C)(i)
hereof shall terminate (and such Directors shall automatically cease to be qualified and be removed from office) and (z) the total
number of Directors constituting the whole Board shall automatically be reduced by two.


 


(D)
Except as set forth herein, holders of Shares
of Series B Preferred Stock shall have no special voting rights and their consents shall not be required (except to the extent
they are entitled to vote with holders of share of Common Stock as set forth herein) for taking any corporate action.


 




    	A-5



     


    

 


Section
4. Certain Restrictions.


 


(A)
Whenever quarterly dividends or other dividends
or distributions payable on Shares of Series B Preferred Stock as provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared, on outstanding Shares of Series B Preferred Stock shall
have been paid in full, the Company shall not:


 


(i)
declare or pay dividends on, or make any other
distributions on, any shares of Junior Stock;


 


(ii)
declare or pay dividends on or make any other
distributions on any shares of Parity Stock (as defined below), except dividends paid ratably on Shares of Series B Preferred
Stock and shares of all such Parity Stock on which dividends are payable or in arrears in proportion to the total amounts to which
the holders of such Shares and all such shares are then entitled;


 


(iii)
redeem or purchase or otherwise acquire for consideration
shares of any Junior Stock, provided, however, that the Company may at any time redeem, purchase or otherwise acquire
shares of any such Junior Stock (A) in exchange for shares of any Junior Stock, (B) pursuant to any redemptions or purchases that
may be deemed to occur upon the exercise of stock options, warrants or similar rights or grant, vesting or lapse of restrictions
on the grant of any other performance shares, restricted stock, restricted stock units or other equity awards to the extent that
such shares represent all or a portion of (x) the exercise or purchase price of such options, warrants or similar rights or other
equity awards and (y) the amount of withholding taxes owed by the recipient of such award in respect of such grant, exercise,
vesting or lapse of restrictions or (C) in connection with the repurchase, redemption, or other acquisition or retirement for
value of any such shares from employees, former employees, directors, former directors, consultants or former consultants of the
Company or their respective estate, spouse, former spouse or family member, pursuant to the terms of the agreements pursuant to
which such shares were acquired; provided that the Company may at any time redeem, purchase or otherwise acquire shares
of any such Junior Stock in exchange for shares of any stock of the Company ranking junior (either in dividends or upon dissolution,
liquidation or winding up) to the Series B Preferred Stock; or


 


(iv)
redeem or purchase or otherwise acquire for consideration
any Shares of Series B Preferred Stock, or any Parity Stock except in accordance with a purchase offer made in writing or by publication
(as determined by the Board) to all holders of such shares upon such terms as the Board, after consideration of the respective
annual dividend rates, and other relative rights and preferences of the respective series and classes, shall determine in good
faith, will result in fair and equitable treatment among the respective series or classes.


 


(B)
The Company shall not permit any subsidiary of
the Company to purchase or otherwise acquire for consideration any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.


 




    	A-6



     


    

 


Section
5. Reacquired Shares. Any Shares of Series B Preferred Stock purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock, subject
to the conditions and restrictions on issuance set forth herein. in the Certificate of Incorporation, or in any other certificate
of designation creating a series of Preferred Stock or any other similar stock , or as otherwise restricted by law.


 


Section
6. Liquidation, Dissolution or Winding Up.


 


(A)
Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company no distribution shall be made (i) to the holders of shares of Junior Stock unless the
holders of Shares of Series B Preferred Stock shall have received, subject to adjustment as hereinafter provided in paragraph
(B), the greater of either (a) $1.00 per Share plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (b) the amount equal to 1,000 times the aggregate per share amount to
be distributed to holders of shares of Common Stock, or (ii) to the holders of shares of Parity Stock, unless simultaneously therewith
distributions are made ratably on Shares of Series B Preferred Stock and all other shares of such Parity Stock in proportion to
the total amounts to which the holders of Shares of Series B Preferred Stock are entitled under clause (i)(a) of this sentence
and to which the holders of shares of such Parity Stock are entitled, in each case upon such liquidation, dissolution or winding
up.


 


(B)
In the event the Company shall at any time after
the Rights Dividend Declaration Date (i) declare or pay any dividend on outstanding shares of Common Stock payable in shares of
Common Stock or (ii) effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of Shares of Series B Preferred Stock were entitled immediately prior
to such event pursuant to clause (i)(b) of paragraph (A) of this Section 6 shall be adjusted by multiplying such amount by a fraction
the numerator of which shall be the number of shares of Common Stock that are outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event.


 


Section
7. Consolidation, Merger, Etc. In case the Company shall enter into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or converted into other stock, securities, cash and/or any other property,
then in any such case Shares of Series B Preferred Stock shall at the same time be similarly exchanged for or converted into an
amount per Share (subject to the provision for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of
stock, securities, cash and/or other property (payable in kind), as the case may be, into which or for which each share of Common
Stock is converted or exchanged. In the event the Company shall at any time after the Rights Dividend Declaration Date (i) declare
or pay any dividend on outstanding shares of Common Stock payable in shares of Common Stock or (ii) effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth
in the immediately preceding sentence with respect to the exchange or conversion of Shares of Series B Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.


 




    	A-7



     


    

 


Section
8. Redemption. The Shares of Series B Preferred Stock shall not be redeemable.


 


Section
9. Ranking. Except as provided below, the Series B Preferred Stock shall rank junior to all other series of Preferred Stock
and to any other class of Preferred Stock that hereafter may be issued by the Company as to the payment of dividends and the distribution
of assets upon liquidation, dissolution or winding up, unless the terms of any such series or class shall provide otherwise. Subject
to Section 6 hereof, the Series B Preferred Stock shall rank senior, as to dividends and the distribution of assets upon liquidation,
dissolution, or winding up, to the Common Stock.


 


Section
10. Amendment. As long as any Shares of Series B Preferred Stock are outstanding, and except as set forth in Section 1
hereof, the Certificate of Incorporation, including, without limitation, this Amended and Restated Certificate of Designation
shall not hereafter be amended, either directly or indirectly, or through merger, consolidation with another corporation or otherwise,
in any manner that would materially alter or change the powers, preferences or special rights of the Series B Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at least two thirds of the outstanding Shares of
Series B Preferred Stock, voting separately as a class.


 


Section
11. Fractional Shares. The Series B Preferred Stock may be issued in fractions of one one-thousandth of a Share or other
fractions of a share, which fractions shall entitle the holder, in proportion to such holder’s fractional shares, to exercise
voting rights, receive dividends, participate in distributions, and to have the benefit of all other rights of holders of Series
B Preferred Stock.


 


Section
12. Definitions. All capitalized terms used herein have the meanings ascribed to them in the Certificate of Incorporation,
unless otherwise defined herein. In addition, for purposes hereof, the following terms shall have the meanings set forth below:


 


(A)
The term “Junior Stock”
(i) as used in Sections 2 and 4, shall mean the Common Stock and any other class or series of capital stock of the Company hereafter
authorized or issued over which the Series B Preferred Stock has preference or priority as to the payment of dividends and (ii)
as used in Section 6, shall mean the Common Stock and any other class or series of capital stock of the Company over which the
Series B Preferred Stock has preference or priority in the distribution of assets on any liquidation, dissolution or winding up
of the Company.


 


(B)
The term “Parity Stock”
(i) as used in Section 4, shall mean any class or series of stock of the Company hereafter authorized or issued ranking pari
passu with the Series B Preferred Stock as to the payment of dividends and (ii) as used in Section 6, shall mean any class
or series of stock of the Company hereinafter authorized or issued and ranking pari passu with the Series B Preferred Stock
as to the distribution of assets on any liquidation, dissolution or winding up of the Company.


 




    	A-8



     


    

 


IN
WITNESS WHEREOF, the Company has caused this Amended and Restated Certificate of Designation to be signed by its authorized
officer this November 16, 2020.


 


	 	CYTRX
    CORPORATION
	 	 
	 	By:	/s/
    Steven A. Kriegsman
	 	Name:	Steven
    A. Kriegsman
	 	Title:	Chief
    Executive Officer


 




    	A-9



     


    

 


Exhibit
B


Amended
and Restated Summary of Rights


 




    	B-1



     


    

 


AMENDED
AND RESTATED SUMMARY OF RIGHTS


TO
PURCHASE SERIES B JUNIOR PARTICIPATING PREFERRED STOCK


 


On
December 13, 2019, the Board of Directors (the “Board”) of CytRx Corporation, a Delaware corporation
(the “Company”), adopted the Rights Agreement dated as of December 13, 2019 (the “Original
Agreement”) by and between the Company and American Stock Transfer & Trust Company, LLC, as rights agent (the
“Rights Agent”).


 


The
Company amended and restated the Original Agreement in its entirety by adopting the Amended and Restated Rights Agreement dated
as of November 16, 2020 (as the same may be amended or restated from time to time, the “Rights Agreement”)
by and between the Company and the Rights Agent, to, among other things, amend the terms therein to address certain tax matters
and account for the Company’s Tax Benefits (as defined in the Rights Agreement).


 


The
Board previously declared a dividend of one preferred share purchase right (a “Right”) for each outstanding
share of common stock, $0.001 par value per share, of the Company (the “Common Stock”), to stockholders
of record at the close of business on December 23, 2019 (the “Record Date”). Rights shall also be issued
in respect of each share of Common Stock issued or distributed from the Company’s treasury following the Record Date and
prior to the Distribution Date (as defined below). Each Right entitles the registered holder, subject to the terms of the Rights
Agreement, to purchase from the Company one one-thousandth of a share of Series B Junior Participating Preferred Stock, $0.01
par value per share, of the Company (the “Preferred Stock”) at a price of $5.00 per one one-thousandth
of a share of Preferred Stock, subject to adjustment (the “Purchase Price”). The description and terms
of the Rights are set forth in the Rights Agreement.


 


Copies
of the Rights Agreement and the Amended and Restated Certificate of Designation for the Preferred Stock (the “Certificate
of Designation”) have been filed with the Securities and Exchange Commission as exhibits to a Current Report on
Form 8-K filed on or about November 17, 2020. Copies of the Rights Agreement and the Certificate of Designation are available
free of charge from the Company. This summary description of the Rights and of the Preferred Stock does not purport to be complete
and is qualified in its entirety by reference to all of the provisions of the Rights Agreement and the Certificate of Designation,
including the definitions therein of certain terms, which Rights Agreement and Certificate of Designation are incorporated herein
by reference. Capitalized terms used herein and defined in the Rights Agreement and not otherwise defined herein shall have the
meanings set forth in the Rights Agreement.


 


The
Rights Agreement


 


Until
the earlier to occur of (i) the close of business on the tenth business day after a public announcement that a person or group
of affiliated or associated persons (with certain exceptions, an “Acquiring Person”) has acquired beneficial
ownership of 4.95% or more of the outstanding shares of Common Stock and (ii) the close of business on the tenth business day
after the commencement by any person of, or of the first public announcement of the intention of any person to commence, a tender
or exchange offer the consummation of which would result in such person becoming the beneficial owner of 4.95% or more of the
outstanding shares of Common Stock (the earlier of such dates being called the “Distribution Date”)
(provided, however, that if such tender or exchange offer is terminated prior to the occurrence of the Distribution
Date, then no Distribution Date will occur as a result of such tender or exchange offer), the Rights will be evidenced, with respect
to any of the Common Stock certificates (or book entry shares) outstanding as of the Record Date, by such Common Stock certificate
(or book entry shares) together with this Summary of Rights.


 




    	B-2



     


    

 


The
Rights Agreement provides that, until the Distribution Date (or earlier expiration or redemption of the Rights), the Rights will
be transferred with and only with the Common Stock. Until the Distribution Date (or earlier expiration or redemption of the Rights),
new Common Stock certificates issued after the Record Date upon transfer or new issuances of Common Stock will contain a legend
incorporating the Rights Agreement by reference, and notice of such legend will be furnished to holders of book entry shares.
Until the Distribution Date (or earlier expiration or redemption of the Rights), the surrender for transfer of any certificates
for shares of Common Stock (or book entry shares of Common Stock) outstanding as of the Record Date, even without such legend
or a copy of this Summary of Rights, will also constitute the transfer of the Rights associated with the shares of Common Stock
represented by such certificate or registered in book entry form. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights (“Rights Certificates”) will be mailed to holders of record of the
Common Stock as of the Close of Business on the Distribution Date and such separate Rights Certificates alone will evidence the
Rights.


 


The
Rights are not exercisable until the Distribution Date and will expire at the earliest of (i) the close of business on November
16, 2023, (ii) the time at which the Rights are redeemed or exchanged by the Company, in each case as described below, (iii) upon
the occurrence of certain mergers or other transactions approved in advance by the Board and (iv) the close of business on the
date set by the Board following a determination by the Board that (x) the Rights Agreement is no longer necessary or desirable
for the preservation of Tax Benefits (as defined in the Rights Agreement) or (y) no Tax Benefits are available to be carried forward
or are otherwise available.


 


The
Purchase Price payable, and the number of shares of Preferred Stock or other securities or property issuable, upon exercise of
the Rights is subject to adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of certain rights
or warrants to subscribe for or purchase Preferred Stock at a price, or securities convertible into Preferred Stock with a conversion
price, less than the then-current market price of the Preferred Stock or (iii) upon the distribution to holders of the Preferred
Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends or dividends payable in Preferred Stock)
or of subscription rights or warrants (other than those referred to above).


 


The
number of outstanding Rights is subject to adjustment in the event of a stock dividend on the Common Stock payable in shares of
Common Stock or subdivisions, consolidations or combinations of the Common Stock occurring, in any such case, prior to the Distribution
Date.


 


With
certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of
at least 1% in such Purchase Price. No fractional shares of Preferred Stock or Common Stock will be issued (other than fractions
of shares of Preferred Stock which are integral multiples of one one-thousandth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts), and in lieu thereof an adjustment in cash will be made based on
the current market price of the Preferred Stock or the Common Stock.


 




    	B-3



     


    

 


Shares
of Preferred Stock purchasable upon exercise of the Rights will not be redeemable. Each share of Preferred Stock will be entitled,
when, as and if declared, to a minimum preferential quarterly dividend payment of the greater of (a) $1.00 per share, and (b)
an amount equal to 1,000 times the dividend declared per share of Common Stock. In the event of liquidation, dissolution or winding
up of the Company, the holders of the Preferred Stock will be entitled to a minimum preferential payment of the greater of (i)
$1.00 per share (plus any accrued but unpaid dividends), and (ii) an amount equal to 1,000 times the payment made per share of
Common Stock. Each share of Preferred Stock will have 1,000 votes, voting together with the Common Stock. Finally, in the event
of any merger, consolidation or other transaction in which outstanding shares of Common Stock are converted or exchanged, each
share of Preferred Stock will be entitled to receive 1,000 times the amount received per share of Common Stock. These rights are
protected by customary anti-dilution provisions.


 


Because
of the nature of the Preferred Stock’s dividend, liquidation and voting rights, the value of the one one-thousandth interest
in a share of Preferred Stock purchasable upon exercise of each Right should approximate the value of one share of Common Stock.


 


In
the event that any person or group of affiliated or associated persons becomes an Acquiring Person, each holder of a Right (other
than Rights beneficially owned by the Acquiring Person and affiliates and associates of the Acquiring Person which will thereupon
become null and void) will, following the Distribution Date, have the right to receive upon exercise of a Right that number of
shares of Common Stock having a market value of two times the exercise price of the Right, unless the Rights were earlier redeemed
or exchanged.


 


In
connection with any exercise or exchange of the Rights, no holder of a Right will be entitled to receive shares of Common Stock
if receipt of such shares would result in such holder, together with such holder’s affiliates and associates, beneficially
owning more than 4.95% of the then-outstanding Common Stock (such shares, the “Excess Shares”) and the
Board determines that such holder’s receipt of Excess Shares would jeopardize or endanger the value or availability of the
Tax Benefits or the Board otherwise determines, in its sole and absolute discretion, that such holder’s receipt of Excess
Shares is not in the best interests of the Company. In lieu of such Excess Shares, such holder will only be entitled to receive
cash or a note or other evidence of indebtedness with a principal amount equal to the then-current market price of the Common
Stock multiplied by the number of Excess Shares that would otherwise have been issuable.


 


In
the event that, after a person or group has become an Acquiring Person, the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning power are sold, proper provisions will be made so
that each holder of a Right (other than Rights beneficially owned by an Acquiring Person and affiliates and associates of the
Acquiring Person which will have become null and void) will thereafter have the right to receive upon the exercise of a Right
that number of shares of common stock of the person with whom the Company has engaged in the foregoing transaction (or its parent)
that at the time of such transaction have a market value of two times the exercise price of the Right.


 




    	B-4



     


    

 


At
any time after any person or group becomes an Acquiring Person and prior to the earlier of one of the events described in the
previous paragraph or the acquisition by such Acquiring Person of 50% or more of the outstanding shares of Common Stock, the Board
may exchange the Rights (other than Rights beneficially owned by such Acquiring Person and affiliates and associates of such Acquiring
Person which will have become null and void), in whole or in part, for shares of Common Stock or Preferred Stock (or a series
of the Company’s preferred stock having equivalent rights, preferences and privileges), at an exchange ratio of one share
of Common Stock, or a fractional share of Preferred Stock (or other preferred stock) equivalent in value thereto, per Right.


 


At
any time before the Distribution Date, the Board may redeem the Rights in whole, but not in part, at a price of $0.001 per Right
(the “Redemption Price”) payable, at the option of the Company, in cash, shares of Common Stock or such
other form of consideration as the Board shall determine. The redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board in its sole and absolute discretion may establish. Immediately upon the action
of the Board ordering the redemption of the Rights (or such later time as the Board may establish for the effectiveness of such
redemption), and without any further action and without any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights will be to receive the Redemption Price for each Right held.


 


The
Company may amend or supplement the Rights Agreement without the approval of any holders of Rights, including, without limitation,
in order to (i) cure any ambiguity, (ii) correct or supplement any provision of the Rights Agreement that may be defective or
inconsistent with any other provisions of the Rights Agreement, (iii) shorten or lengthen any time period in the Rights Agreement
or (iv) otherwise change, amend or supplement any provision that the Company may deem necessary or desirable. However, from and
after the time when any person or group of persons becomes an Acquiring Person, the Rights Agreement may not be amended or supplemented
in any manner that would, among other things, adversely affect the interests of the holders of Rights (other than holders of Rights
that have become null and void).


 


Until
a Right is exercised or exchanged, the holder thereof, as such, will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.


 




    	B-5



     


    

 


Exhibit
C


Form
of Rights Certificate


 




    	C-1



     


    

 


FORM
OF RIGHTS CERTIFICATE


 


	Certificate
    No. R-________	________
    Rights


 


NOT
EXERCISABLE AFTER NOVEMBER 16, 2023 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY OR ANY OTHER EARLIER EXPIRATION DATE (AS
SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS DEFINED BELOW)). THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY,
AT $0.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON OR A RELATED PERSON OF ANY SUCH PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. THE RIGHTS SHALL NOT BE EXERCISABLE, AND SHALL BE NULL AND VOID, AS
LONG AS HELD BY A HOLDER IN ANY JURISDICTION WHERE THE REQUISITE QUALIFICATION TO THE ISSUANCE TO SUCH HOLDER, OR THE EXERCISE
BY SUCH HOLDER, OF THE RIGHTS IN SUCH JURISDICTION SHALL NOT HAVE BEEN OBTAINED OR BE OBTAINABLE.


 


[The
Rights represented by this Rights Certificate are or were Beneficially Owned by a Person who was or became an Acquiring Person
or a Related Person of an Acquiring Person (as such terms are defined in the AMENDED AND RESTATED Rights Agreement DATED AS OF
NOVEMBER 16, 2020 BY AND BETWEEN CYTRX CORPORATION AND AMERICAN Stock TRANSFER & trust COMPANY, LLC (AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, THE “RIGHTS AGREEMENT”)). Accordingly, this Rights Certificate and the Rights represented hereby
ARE OR may become null and void in the circumstances specified in Section 7(e)
of the Rights Agreement.]*


 





 



 *
The portion of the legend in brackets shall be inserted only if applicable and shall replace the preceding sentence.

 




    	C-2



     


    

 


Rights
Certificate


 


This
certifies that _________________, or its registered assigns, is the registered holder of the number of Rights set forth above,
each of which entitles the holder thereof, subject to the terms, provisions and conditions of the Amended and Restated Rights
Agreement dated as of November 16, 2020, as amended or restated from time to time (the “Rights Agreement”),
by and between CytRx Corporation, a Delaware corporation (the “Company”), and American Stock Transfer
& Trust Company, LLC, as Rights Agent (the “Rights Agent”), to purchase from the Company at any
time after the Distribution Date and prior to 5:00 p.m., New York City time, on November 16, 2023, at the office or offices of
the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-thousandth of a fully paid, non-assessable
share of Series B Junior Participating Preferred Stock, par value $0.01 per share (the “Preferred Stock”),
of the Company, at a purchase price of $5.00 per one one-thousandth share of Preferred Stock (the “Purchase Price”),
upon presentation and surrender of this Rights Certificate with the Election to Purchase and related Certificate duly executed.
The number of Rights evidenced by this Rights Certificate (and the number of shares that may be purchased upon exercise thereof)
set forth above, and the Purchase Price per share as set forth above, are the number and Purchase Price as of [DISTRIBUTION DATE],
based on the Preferred Stock as constituted at such date, and are subject to adjustment upon the happening of certain events as
provided in the Rights Agreement. Capitalized terms used and not defined herein shall have the meanings specified in the Rights
Agreement.


 


From
and after the occurrence of a Section 11(a)(ii) Event or Section 13 Event, the Rights evidenced by this Rights Certificate beneficially
owned by (i) an Acquiring Person or a Related Person of any such Acquiring Person, (ii) a transferee of any such Acquiring Person
or Related Person or (iii) under certain circumstances specified in the Rights Agreement, a transferee of a person who, concurrently
with or after such transfer, became an Acquiring Person or a Related Person of an Acquiring Person shall become null and void
and no holder hereof shall have any right with respect to such Rights from and after the occurrence of such Section 11(a)(ii)
Event or Section 13 Event.


 


The
Rights evidenced by this Rights Certificate shall not be exercisable, and shall be null and void as long as held, by a holder
in any jurisdiction where the requisite qualification to the issuance to such holder, or the exercise by such holder, of the Rights
in such jurisdiction shall not have been obtained or be obtainable.


 


As
provided in the Rights Agreement, the Purchase Price and the number and kind of shares of Preferred Stock or other securities
which may be acquired upon the exercise of the Rights evidenced by this Rights Certificate are subject to modification and adjustment
upon the happening of certain events, including Triggering Events.


 


This
Rights Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby
made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent,
the Company and the holders of the Rights Certificates, which limitations of rights include the temporary suspension of the exercisability
of such Rights under the specific circumstances set forth in the Rights Agreement. Copies of the Rights Agreement are on file
at the above-mentioned office of the Rights Agent and are also available upon written request to the Rights Agent.


 




    	C-3



     


    

 


This
Rights Certificate, with or without other Rights Certificates, upon surrender at the office or offices of the Rights Agent designated
for such purpose, may be exchanged for another Rights Certificate or Rights Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of one one-thousandths of a share of Preferred Stock as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered shall have entitled such holder to purchase. If this Rights Certificate
shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.


 


Subject
to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed by the Company under certain
circumstances at its option at a redemption price of $0.001 per Right at any time prior to the Distribution Date.


 


At
any time after a person becomes an Acquiring Person and prior to the acquisition by such person of 50% or more of the outstanding
Common Stock, the Board may exchange the Rights (other than Rights owned by such Acquiring Person which have become null and void),
in whole or in part, at an exchange ratio of one share of Common Stock per each outstanding Right or, in certain circumstances,
other equity securities of the Company which are deemed by the Board to have the same value as shares of Common Stock, subject
to adjustment.


 


In
connection with any exercise or exchange of the Rights, no holder of a Right will be entitled to receive shares of Common Stock
if receipt of such shares would result in such holder, together with such holder’s affiliates and associates, beneficially
owning more than 4.95% of the then-outstanding Common Stock (such shares, the “Excess Shares”) and the
Board determines that such holder’s receipt of Excess Shares would jeopardize or endanger the value or availability of the
Tax Benefits (as such term is defined in the Rights Agreement) or the Board otherwise determines that such holder’s receipt
of Excess Shares is not in the best interests of the Company. In lieu of such Excess Shares, such holder will only be entitled
to receive cash or a note or other evidence of indebtedness with a principal amount equal to the then-current market price of
the Common Stock multiplied by the number of Excess Shares that would otherwise have been issuable.


 


No
fractional shares of Preferred Stock will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions
which are integral multiples of one one-thousandth of a share of Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash payment will be made, as provided in the Rights Agreement.


 


No
holder of this Rights Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder
of shares of Preferred Stock or of any other securities of the Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of
the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have been exercised as provided in
the Rights Agreement.


 


This
Rights Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by an authorized signatory
of the Rights Agent.


 




    	C-4



     


    

 


WITNESS
the facsimile signature of the proper officers of the Company.


 


Dated
as of _____________, ______.


 


	 	CYTRX
    CORPORATION
	 	 
	 	By:	             
	 	Name:	 
	 	Title:	 


 


Countersigned:


 


Dated
as of _____________, ______.


 


AMERICAN
Stock Transfer & Trust Company, LLC,


as
Rights Agent


 


	By:	          	 
	Authorized
    Signatory	 


 




    	C-5



     


    

 


[Form
of Reverse Side of Rights Certificate]


 


FORM
OF ASSIGNMENT


 


(To
be executed by the registered holder if


such
holder desires to transfer the


Rights
Certificate.)


 


FOR
VALUE RECEIVED hereby sells, assigns and transfers unto


 


	 
	(Please
    print name and address of transferee)


 


	 


 


this
Rights Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Attorney,
to transfer the within Rights Certificate on the books of the within-named Company, with full power of substitution.


 


Dated
_____________, ______.


 


	 	 
	 	Signature


 


Signature
Guaranteed:


 




    	C-6



     


    

 


Certificate


 


The
undersigned hereby certifies by checking the appropriate boxes that:


 


(1)
this Rights Certificate [ ] is [ ] is not being sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person or a Related Person of any such Person (as such terms are defined pursuant to the Rights Agreement);
and


 


(2)
after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or subsequently became an Acquiring Person or a Related Person of any such
Person.


 


Dated
_____________, ______.


 


	 	 
	 	Signature


 


Signature
Guaranteed:


 




    	C-7



     


    

 


NOTICE


 


The
signature to the foregoing Assignment and Certificate must correspond to the name as written upon the face of this Rights Certificate
in every particular, without alteration or enlargement or any change whatsoever.


 


Signatures
must be guaranteed by a participant in a Medallion Signature Guarantee Program at a level acceptable to the Rights Agent.


 


In
the event the certification set forth above is not completed, the Company will deem the beneficial owner of the Rights evidenced
by this Rights Certificate to be an Acquiring Person or a Related Person thereof (as defined in the Rights Agreement) and, in
the case of an Assignment, will affix a legend to that effect on any Rights Certificates issued in exchange for this Rights Certificate.


 




    	C-8



     


    

 


FORM
OF ELECTION TO PURCHASE


 


(To
be executed if the registered holder


desires
to exercise Rights represented


by
the Rights Certificate.)


 


To:______________________


 


The
undersigned hereby irrevocably elects to exercise      Rights represented by this Rights Certificate to purchase the shares of Preferred
Stock issuable upon the exercise of the Rights (or such other securities of the Company or of any other person or such other property
which may be issuable upon the exercise of the Rights) and requests that certificates for such shares (or such other securities
of the Company or of any other person or such other property as may be issuable upon the exercise of the Rights) be issued in
the name of and delivered to:


 


	 
	(Please
    print name and address)


 


	 


 


	Please
        insert social security

        or
        other identifying number:
	 


 


If
such number of Rights shall not be all the Rights evidenced by this Rights Certificate, a new Rights Certificate for the balance
of such Rights shall be registered in the name of and delivered to:


 


	 
	(Please
    print name and address)


 


	 


 


	Please
        insert social security

        or
        other identifying number:
	 


 


Dated
_____________, ______.


 


	 	 
	 	Signature


 


Signature
Guaranteed:


 




    	C-9



     


    

 


Certificate


 


The
undersigned hereby certifies by checking the appropriate boxes that:


 


(1)
the Rights evidenced by this Rights Certificate [  ] are [  ] are not being exercised by or on behalf
of a Person who is or was an Acquiring Person or a Related Person of any such Person (as such terms are defined in the Rights
Agreement); and


 


(2)
after due inquiry and to the best knowledge of the undersigned, the undersigned [  ] did [  ] did
not acquire the Rights evidenced by this Rights Certificate from any Person who is, was or became an Acquiring Person or a
Related Person of any such Person.


 


Dated
_____________, ______.


 


	 	 
	 	Signature


 


Signature
Guaranteed:


 




    	C-10



     


    

 


NOTICE


 


The
signature to the foregoing Election to Purchase and Certificate must correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any change whatsoever.


 


Signatures
must be guaranteed by a participant in a Medallion Signature Guarantee Program at a level acceptable to the Rights Agent.


 


In
the event the certification set forth above is not completed, the Company will deem the beneficial owner of the Rights evidenced
by this Rights Certificate to be an Acquiring Person or a Related Person thereof (as defined in the Rights Agreement) and, in
the case of an Assignment, will affix a legend to that effect on any Rights Certificates issued in exchange for this Rights Certificate.


 




    	C-11