Exhibit
4.1


 


CYTRX
CORPORATION


 


and


 


AMERICAN
STOCK TRANSFER & TRUST COMPANY, LLC


 


as
Rights Agent


 


RIGHTS
AGREEMENT


 


dated
as of December 13, 2019


 




    	 	 	 



     


    

 


TABLE
OF CONTENTS


 


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


 




    	 	 	 



     


    

 


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


 




    	 	 	 



     


    

 


RIGHTS
AGREEMENT


 


RIGHTS
AGREEMENT, dated as of December 13, 2019 (this “Agreement”), 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 authorized
and declared a dividend 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 shall 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 shall 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 who or which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 15% or more of the shares of Common Stock of the Company then outstanding, but shall
not include (i) the Company, (ii) any Subsidiary of the Company, or (iii) any employee benefit plan of the Company or any Subsidiary
of the Company, or any Person holding shares of Common Stock for or pursuant to the terms of any such plan to the extent, and
only to the extent, of such shares of Common Stock so held. Notwithstanding anything in this definition of “Acquiring Person”
to the contrary:


 


(i)
no Person shall become an “Acquiring Person” 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 Affiliates and Associates of such Person, to 15% or more of the shares of Common Stock
of the Company then outstanding; provided, however, that if a Person, together with all Affiliates and Associates
of such Person, shall become the Beneficial Owner of 15% or more of the shares of Common Stock of the Company then outstanding
by reason of share acquisitions by the Company and shall, after such share acquisitions by the Company, become 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), 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 Affiliates and Associates of such Person, does not beneficially own 15% or more
of the Common Stock then outstanding;


 




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(ii)
if the Board determines that a Person who would otherwise be an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this paragraph (a), has become such inadvertently (including, without limitation, because (A) such Person was unaware
that it beneficially owned a percentage of the then outstanding Common Stock that would otherwise cause such Person to be an “Acquiring
Person” or (B) such Person was aware of the extent of its Beneficial Ownership of Common Stock but had no actual knowledge
of the consequences of such Beneficial Ownership under this Agreement), and such Person divests as promptly as practicable (but,
in any event, within 15 Business Days following written receipt from the Company that such Person’s Beneficial Ownership
of shares of Common Stock would make it an Acquiring Person but for this clause (a)(ii)) a sufficient number of shares of Common
Stock 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 shall again become an “Acquiring
Person”;


 


(iii)
if, as of the date hereof or prior to the first public announcement of the adoption of this Agreement, any Person is or becomes
the Beneficial Owner of 15% or more of the shares of Common Stock outstanding, such Person shall not be deemed to be or to become
an “Acquiring Person” unless and until such time as such Person shall, after the first public announcement of the
adoption of this Agreement, become the Beneficial Owner of 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), unless upon becoming the Beneficial Owner of such additional shares of Common Stock, such Person is not then the
Beneficial Owner of 15% or more of the shares of Common Stock then outstanding; and


 


(iv)
no Person shall become an “Acquiring Person” 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, who or which together with all Affiliates
and Associates, shall become the Beneficial Owner of 15% 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, such Person shall nevertheless
be deemed to be an “Acquiring Person” if, subject to Section 1(a)(ii), such Person, together with all Affiliates and
Associates, 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 Affiliates and Associates, does not beneficially own
15% or more of the Common Stock then outstanding), except as a result of (y) 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 (z) the unilateral grant of a security
by the Company, or through the exercise of any options, warrants, rights or similar interest (including restricted stock) granted
by the Company to its directors, officers and employees.


 


(b)
A Person shall be deemed to be “Acting in Concert” with another Person if such Person knowingly acts (whether
or not pursuant to an express agreement, arrangement or understanding) at any time after the first public announcement of the
adoption of this Agreement, in concert or in parallel with such other Person, or towards a common goal with such other Person,
relating to changing or influencing the control of the Company or in connection with or as a participant in any transaction having
that purpose or effect, where (i) each Person is conscious of the other Person’s conduct and this awareness is an element
in their respective decision-making processes and (ii) at least one additional factor supports a determination by the Board of
the Company that such Persons intended to act in concert or in parallel, which additional factors may include, without limitation,
exchanging information, attending meetings, conducting discussions, or making or soliciting invitations to act in concert or in
parallel; provided that, the additional factor required shall not include actions by an officer or director of the Company
acting in such capacities. A Person who is Acting in Concert with another Person shall be deemed to be Acting in Concert with
any third party who is also Acting in Concert with such other Person. No Person shall be deemed to be Acting in Concert with another
Person solely as a result of (a) making or receiving a solicitation of, or granting or receiving, revocable proxies or consents
given in response to a public proxy or consent solicitation made to more than 10 holders of shares of a class of stock of the
Company registered under Section 12 of the Exchange Act, or (b) soliciting or being solicited for tenders of, or tendering or
receiving tenders of, securities in a public tender or exchange offer made pursuant to, and in accordance with, Section 14(d)
of the Exchange Act by means of a tender offer statement filed on Schedule TO.


 




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(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.


 


(d)
A Person shall be deemed the “Beneficial Owner” of and shall be deemed to “beneficially own”
and to have “beneficial ownership” of any securities:


 


(i)
that such Person or any of such Person’s Affiliates or Associates 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);


 


(ii)
that such Person or any of such Person’s Affiliates or Associates, directly or indirectly, has (A) the right to acquire
(whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding
(whether or not in writing), or upon the exercise of conversion rights, exchange 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, (x) 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 Affiliates or Associates
until such tendered securities are accepted for purchase or exchange, or


 


(y)
securities issuable upon exercise of Rights at any time prior to the occurrence of a Triggering Event, or (z) securities issuable
upon exercise of Rights from and after the occurrence of a Triggering Event if such Rights were acquired by such Person or any
of such Person’s Affiliates or Associates prior to the Distribution Date or pursuant to Section 3(a) or Section 22 hereof
(the “Original Rights”) or pursuant to Section 11(a) hereof in connection with an adjustment made with respect
to any Original Rights; or (B) the right to vote pursuant to any agreement, arrangement, or understanding (except to the extent
contemplated by the proviso to subparagraph (i) of this paragraph (c));


 


(iii)
that are beneficially owned, directly or indirectly, by any other Person (or any Affiliate or Associate of such Person) with which
such Person (or any of such Person’s Affiliates or Associates) is (A) Acting in Concert, or (B) has any agreement, arrangement,
or understanding (whether or not in writing)(other than customary agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), for the purpose of acquiring, holding, voting (except to the extent
contemplated by the proviso to subparagraph (i) of this paragraph (c)) or disposing of any such securities;


 


(iv)
which are beneficially owned, directly or indirectly, by a Counterparty (or any such Counterparty’s Affiliates or Associates)
under any Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract)
to which such Person or any of such Person’s Affiliates or Associates is a Receiving Party (as such terms are hereinafter
defined); provided, however, that the number of shares of Common Stock that a Person is deemed to beneficially own
pursuant to this clause (iv) in connection with a particular Derivatives Contract shall not exceed the number of Notional Common
Shares (as such term is hereinafter defined) with respect to such Derivatives Contract; provided further that the number
of securities beneficially owned by each Counterparty (including its Affiliates and Associates) under a Derivatives Contract shall
for purposes of this clause (iv) be deemed to include all securities that are beneficially owned, directly or indirectly, by any
other Counterparty (or any of such other Counterparty’s Affiliates or Associates) under any Derivatives Contract to which
such first Counterparty (or any of such first Counterparty’s Affiliates or Associates) is a Receiving Party, with this proviso
being applied to successive Counterparties as appropriate;


 




    	 	3	 



     


    

 


provided,
however, that nothing in this paragraph (d) shall cause a Person engaged in business as an underwriter of securities to
be the “Beneficial Owner” of, or to “beneficially own,” or have “beneficial ownership” of,
any securities acquired through such Person’s participation in good faith in a firm commitment underwriting until the expiration
of forty (40) days after the date of such acquisition; provided further, however, that no Person who is an officer,
director or employee of the Company or any Subsidiary of the Company shall be deemed, solely by reason of such Person’s
status or authority as such, to be the “Beneficial Owner” of, or to “beneficially own,” any securities
that are “beneficially owned” (as defined in this paragraph (c)), including, without limitation, in a fiduciary capacity,
by the Company or any Subsidiary of the Company, or by any other such officer, director or employee of the Company or any Subsidiary
of the Company.


 


Notwithstanding
anything in this definition of Beneficial Ownership to the contrary, the phrase “then outstanding,” when used with
reference to a Person’s Beneficial Ownership of securities of the Company, shall mean the number of such securities then
issued and outstanding together with the number of such securities not then actually issued and outstanding that such Person would
be deemed to beneficially own hereunder.


 


(e)
“Board” shall mean the Board of Directors of the Company or any duly authorized committee thereof.


 


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


 


(g)
“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.


 


(h)
“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 (the “Secretary of State”) on November 15,
2007, as further amended following such date, and together with the Certificate of Designation of the Preferred Stock of the Company
adopted contemporaneously with the approval of this Agreement and 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.


 


(i)
“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.


 


(j)
“Common Stock” when used with reference to the Company shall mean Common Stock, par value $0.001 per share,
of the Company. “Common Stock” 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.


 


(k)
“Derivatives Contract” shall mean a contract between two parties (the “Receiving Party”
and the “Counterparty”) that is designed to produce economic benefits and risks to the Receiving Party that
correspond substantially to the ownership by the Receiving Party of a number of shares of Common Stock specified or referenced
in such contract (the number corresponding to such economic benefits and risks, the “Notional Common Shares”),
regardless of whether (i) obligations under such contract are required or permitted to be settled through the delivery of cash,
shares of Common Stock or other property or (ii) such contract conveys any voting rights in shares of Common Stock, without regard
to any short or similar position under the same or any other Derivative Contract. For the avoidance of doubt, interests in broad-based
index options, broad-based index futures and broad-based publicly traded market baskets of stocks approved for trading by the
appropriate federal governmental authority shall not be deemed to be Derivatives Contracts.


 




    	 	4	 



     


    

 


(l)
“Distribution Date” shall mean the earlier of (i) the Close of Business on the tenth Business Day after the
Stock Acquisition Date (or, if the tenth 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 Business Day (or, if such tenth 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 (other than the
Company, any Subsidiary of the Company or any employee benefit plan of the Company or of any Subsidiary of the Company or any
Person holding shares of Common Stock for or pursuant to the terms of any such plan) of, or of the first public announcement of
the intention of any Person (other than any of the Persons referred to in the preceding parenthetical) to commence, a tender or
exchange offer the consummation of which would result in such Person becoming the Beneficial Owner of 15% or more of the outstanding
shares of Common Stock.


 


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


 


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


 


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


 


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


 


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


 


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


 


(s)
“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 and also (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.


 


(t)
“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.


 


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


 


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


 


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


 


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


 


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


 


(z)
“Right” and “Rights” shall have the meaning set forth in the Preamble hereof.


 




    	 	5	 



     


    

 


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


 


(bb)
“Rights Dividend Declaration Date” shall have the meaning set forth in the Preamble hereof.


 


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


 


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


 


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


 


(ff)
“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 an Acquiring Person that an Acquiring Person
has become such.


 


(gg)
“Subsidiary” shall mean, with reference to any Person, any other Person of which (1) 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 (2) 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.


 


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


 


(ii)
“Trust” has the meaning set forth in Section 24(d) hereof.


 


(jj)
“Trust Agreement” has the meaning set forth in Section 24(d) hereof.


 


	Section
    2.	Appointment
    of Rights Agent.


 


The
Company hereby appoints the Rights Agent to act as agent for the Company and the holders of Rights 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 Record Date, the Company will send a copy of a 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 record holder of Common
Stock as of the Close of Business on the Record Date, at the address of such holder shown on the records of the Company.


 


With
respect to certificates representing shares of Common Stock outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates for shares of Common Stock registered in the names of the holders thereof, and not
by separate Rights Certificates, and with respect to Book Entry shares of Common Stock outstanding as of the Record Date, until
the Distribution Date, the Rights will be evidenced by the balances indicated in the Book Entry account system of the transfer
agent for the Common Stock, registered in the names of the holders thereof. Until the earlier of the Distribution Date or 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.


 




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(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 a Rights
Agreement between CytRx Corporation (the “Company”) and American Stock Transfer & Trust Company, LLC (or any successor
rights agent) dated as of December 13, 2019, as the same may be amended 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.


 


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, until the earliest of the Distribution
Date, the Redemption Date and the Final 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, until the earliest of the Distribution Date, the Redemption 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 deemed cancelled and retired so that the Company shall not
be 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).


 




    	 	7	 



     


    

 


(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 Associate or Affiliate 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 shall 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 cash is paid in lieu of any fractional Rights. 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 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 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-thousandths 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 Associate
or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) that becomes
a transferee after the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) 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 Associate or Affiliate)
to holders of equity interests in such Acquiring Person (or any such Associate or Affiliate) or to any Person with whom such Acquiring
Person (or any such Associate or Affiliate) 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 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:


 


“The
Rights represented by this Rights Certificate are or were beneficially owned by a Person who was or became an Acquiring Person
or an Affiliate or Associate of an Acquiring Person (as such terms are defined in the Rights Agreement dated as of December 13,
2019, by and between CytRx Corporation and American Stock Transfer & Trust Company, LLC, (or any successor rights agent) (the
“Rights Agreement”)). Accordingly, this Rights Certificate and the Rights represented hereby 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 Associate or Affiliate 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 an Affiliate or an Associate of an Acquiring Person.
The Company shall instruct the Rights Agent in writing of the Rights which should be so legended.


 




    	 	8	 



     


    

 


	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 (each an “Authorized Officer”), 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. Rights Certificates bearing the
manual or facsimile signatures of the individuals who were at any time 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 be valid for any purpose unless there appears on such Rights Certificate a
countersignature duly executed by the Rights Agent by manual or facsimile signature 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.


 


(b)
Following the Distribution Date, and receipt by the Rights Agent of written notice to that effect and all other relevant and necessary
information referred to in Section 3(d), the Rights Agent shall keep or cause to be kept, at its office designated for surrender
of Rights Certificates upon exercise or transfer, 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 or Certificates (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 or Certificates, 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 or Certificates 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 Certificate or 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 and such other documentation as the Rights Agent may reasonably request.
The Right 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 shall have properly completed and executed the certificate set forth in the form of assignment on the reverse
side of such Rights Certificate and shall have provided such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) of the Rights represented by such Rights Certificate or Affiliates or Associates thereof as the Company or the
Rights Agent shall 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 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 charges, the Company shall give the Rights Agent prompt written notice thereof
and the Rights Agent shall not deliver any Right 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 shall specify
by written notice. The Rights Agent shall have no duty or obligation under any Section of this Agreement requiring the payment
of taxes and charges unless and until it is satisfied that all such taxes and charges have been paid.


 




    	 	9	 



     


    

 


(b)
If a Rights Certificate shall be mutilated, lost, stolen, or destroyed, upon 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 Affiliates or Associates thereof as the Company or the Rights
Agent shall request, and, if requested by the Company or the Rights Agent, an open penalty surety bond satisfactory to it and
holding the Company and the Rights Agent harmless.


 


	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-thousandths
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, at or prior to the earliest of (i) the Close of Business on December 13, 2029 (the “Final Expiration Date”),
(ii) the time at which the Rights are redeemed (the “Redemption Date”) as provided in Section 23 hereof or
(iii) the time at which the Rights are exchanged (the “Exchange Date”) as provided in Section 24 hereof (the
earliest of (i), (ii) and (iii) being herein referred to as the “Expiration Date”).


 


(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 paragraph (c) of this Section 7.


 


(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 charge in cash, or by money order, certified check or cashier’s check payable to
the order of the Company, the Rights Agent shall, subject to Section 18(k) hereof, thereupon 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 shall have 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 to comply with all
such requests, (ii) when 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, (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, and (iv) when necessary to comply with this Agreement, after receipt
thereof, deliver such cash, if any, to or upon the order of the registered holder of such Rights Certificate. In the event that
the Company is obligated to issue Common Stock or other securities of the Company, pay cash and/or distribute other property pursuant
to Section 11(a) hereof, the Company shall make all arrangements necessary so that such Common Stock, other securities, cash and/or
other property 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 property.
The payment of the Purchase Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or
by certified or bank check or money order payable to the order of the Company.


 




    	 	10	 



     


    

 


(d)
In case the registered holder of any Rights Certificate shall exercise 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, the registered holder of such Rights Certificate, registered in such name or names as may be 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 first occurrence of a Section 11(a)(ii) Event,
any Rights beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such,
or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently
with the Acquiring Person becoming such and who receives such Rights pursuant to either (A) a transfer (whether or not for consideration)
from the Acquiring Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person (or any
such Associate or Affiliate) or to any Person with whom the Acquiring Person (or any such Associate or Affiliate) 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 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 rights or preferences whatsoever with respect to such Rights, whether under any
provision of this Agreement, the Rights Certificates or otherwise (including, without limitation, rights and preferences pursuant
to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use 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 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 Affiliates, Associates or transferees hereunder.


 


(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 shall have (i) properly completed
and duly executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate
surrendered for such 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 Affiliates or Associates thereof as the Company shall reasonably
request.


 


	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.


 




    	 	11	 



     


    

 


	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), the number of shares of Preferred Stock (and, following the occurrence
of a Triggering Event, shares of Common Stock and/or other securities) that, as provided in this Agreement, including Section
11(a)(iii) hereof, shall 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 securities exchange, the Company
shall use its best 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 upon official notice of issuance upon such exercise.


 


(c)
The Company shall use its reasonable best efforts to (i) file, as soon as practicable following the earliest date after the first
occurrence of a 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, a registration statement on an appropriate form under the Securities Act with respect to the securities purchasable
upon exercise of the Rights; (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 ninety (90) 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 simultaneous written notice
to the Rights Agent. Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction (x) if the requisite qualification in such jurisdiction shall not have been obtained and until a registration statement
has been declared effective or (y) if the exercise thereof shall not be permitted under applicable law.


 


(d)
The Company shall take such action as may be necessary to ensure that all one one-thousandths 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.


 


(e)
The Company shall pay when due and payable any and all documentary, stamp, or transfer tax, or other tax or 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 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 charge shall have
been paid (any such tax or 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 and Rights Agent’s satisfaction that no such tax or charge is due.


 




    	 	12	 



     


    

 


	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 for all purposes be deemed to have become 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 in the Book Entry account system of the transfer agent for the Preferred Stock 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 charges) was made; provided, however, that if the date of such surrender and payment is a date upon which
the Preferred Stock (or Common Stock and/or other securities as the case may be) 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 in the Book Entry account system of the transfer agent for the Preferred Stock shall be dated, the next succeeding Business
Day on which the Preferred Stock (or Common Stock and/or other securities as the case may be) transfer books of the Company are
open and, 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 shall be 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.


 


	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 shall at any time after the Rights Dividend Declaration Date (A) declare a dividend on the Preferred
Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred
Stock into a smaller number of shares or (D) issue 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 corporation),
except as otherwise provided in this Section 11(a), the number and kind of shares (or fractions thereof) of Preferred Stock or
capital stock, as the case may be, issuable on the record date for such dividend or the effective date of such subdivision, combination
or reclassification upon exercise of the Rights, shall be proportionately adjusted so that the holder of any Right exercised after
such time shall be 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 shall 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.


 




    	 	13	 



     


    

 


(ii)
Subject to Section 23 and Section 24 hereof, in the event that any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed or established
by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall become
an Acquiring Person, 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 (as defined in Section 23(a)
hereof), 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, such number of shares of Common Stock of the Company
as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then 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 first occurrence of
a Section 11(a)(ii) Event, whether or not such Right was then exercisable, and (y) dividing that product (which, following such
first occurrence, 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 per share market price of Common
Stock (as determined pursuant to Section 11(d) hereof) on the date of such first occurrence (such number of shares, the “Adjustment
Shares”). The Company shall provide the Rights Agent with written notice of the identity of any such Acquiring Person,
Affiliate or Associate, 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 shall have received such notice.


 


(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 subparagraph (ii) such number or fractions of shares of Preferred Stock having an aggregate market value equal to the
current per share market price of one share of Common Stock. In the event that the number of shares of Common Stock which is 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 subparagraph (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 (x) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current
Value”) over (y) 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 deemed 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, having an aggregate value equal to the Current Value, where such aggregate value has been determined
by the Board based upon the advice of an investment banking firm selected by the Board; provided, however, if the
Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following
the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right of redemption
pursuant to Section 23(a) hereof expires (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii)
Trigger Date”), then the Company shall be obligated to 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
of 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.


 


If,
upon the occurrence of a Section 11(a)(ii) Event, the Board shall determine 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-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 (x) shall provide, subject to Section 7(e) hereof, that such action
shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of
the Substitution Period in order to seek any 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 (as determined pursuant to Section 11(d) hereof) per share of the
Common Stock on the Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be deemed
to 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).


 




    	 	14	 



     


    

 


(b)
In case the Company shall fix 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 rights, privileges and preferences 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 per share market price of the Preferred Stock (as determined pursuant
to Section 11(d) hereof) 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 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. 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 as 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 shall 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 then be in effect if such record date had not been fixed.


 


(c)
In case the Company shall fix 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 corporation),
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 per share market price
(as determined pursuant to Section 11(d) hereof) of the Preferred Stock on such record date minus the fair market value (as determined
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 holder 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 such current per share market price (as determined pursuant to Section 11(d) hereof) 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.


 




    	 	15	 



     


    

 


(d)
(i) For the purpose of any computation under this Agreement, the “current per share market price” of any security,
including the Common Stock, on any date shall be deemed to be the average of the daily closing prices per share of such security
for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to, but not including, such
date; provided, however, that in the event that the current per share market price of the 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, but not including, the expiration of the requisite thirty (30) Trading Day
period, as set forth above, but not including, after the ex-dividend date for such dividend or distribution, or the record date
for such subdivision, combination or reclassification, then, and in each such case, the “current per share market price”
shall be appropriately adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed on
the principal national 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 securities exchange, the last quoted price 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 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 selected by the Board.


 


If
on any such date no market maker is making a market in the security, the fair value of such shares on such date as determined
by the Board shall be used. If the security is not publicly held or not listed or traded, “current market price” shall
mean the fair value per share as determined by the Board, whose determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes. The term “Trading Day” shall mean, if the security is
listed or admitted to trading on any national securities exchange, a day on which the principal national securities exchange on
which such security is listed or admitted to trading is open for the transaction of business or, if such security is not so listed
or admitted, a Business Day.


 


(ii)
For the purpose of any computation under this Agreement, the “current per share market price” of the Preferred Stock
shall be determined in the same manner as set forth above for the Common Stock in clause (i) of this Section 11(d) (other than
the last sentence thereof). If the current per share market price of the Preferred Stock cannot be determined in the manner provided
above or if the Preferred Stock is not publicly held or listed or traded in a manner described in clause (i) of this Section 11(d),
the “current per share market price” of the Preferred Stock shall be conclusively deemed to be an amount equal to
1,000 (as such number may be appropriately adjusted for such events as stock splits, reverse stock splits, stock dividends or
any similar transaction with respect to the Common Stock occurring after the date of this Agreement) multiplied by the current
per share market price of the Common Stock. If neither the Common Stock nor the Preferred Stock is publicly held or so listed
or traded, the “current per share market price” of the Preferred Stock shall mean the fair value per share as 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. For all purposes of this Agreement, the “current per share market price” of one
one-thousandth of a share of Preferred Stock shall be equal to the “current per share market price” of one share of
Preferred Stock divided by 1,000.


 


(e)
Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall be 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(e) 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(e), any adjustment required by this Section 11 shall be made no later than the earlier of
(i) three years from the date of the transaction that requires such adjustment or (ii) the Expiration Date.


 


(f)
If, as a result of an adjustment made pursuant to Sections 11(a) or 13(a) hereof, the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock other than Preferred Stock, thereafter the number of such other shares
so receivable upon exercise of any Right and the Purchase Price thereof 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), (e), (g), (h), (i), (j), (k), (l) and (m) 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.


 




    	 	16	 



     


    

 


(g)
All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall 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.


 


(h)
Unless the Company shall have exercised its election as provided in Section 11(i), 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 shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one one-thousandths
of a share of Preferred Stock (calculated to the nearest one-millionth of a share) obtained by (i) multiplying (x) the number
of one one-thousandths of a share covered by a Right immediately prior to this adjustment by (y) 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.


 


(i)
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 that 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. This 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(i), the Company shall, as promptly as practicable, 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 shall be entitled as a result of such adjustment, or, at the option of the Company, shall
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 shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued,
executed 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.


 


(j)
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.


 


(k)
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 fully
paid and non-assessable, number of one one-thousandths of a share of Preferred Stock at such adjusted Purchase Price.


 


(l)
In any case in which this Section 11 shall require 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.


 




    	 	17	 



     


    

 


(m)
Anything in this Section 11 to the contrary notwithstanding, prior to the Distribution Date, the Company shall be entitled to
make such reductions in the Purchase Price, in addition to those adjustments expressly required by this Section 11, as and to
the extent that the Board shall determine 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 shall not be taxable to such holders or shall reduce the taxes payable by such holders.


 


(n)
The Company shall 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 complies with Section 11(o) 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 complies
with Section 11(o) 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, each of which complies with Section 11(o) hereof), if (x) 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 (y) 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 Affiliates and Associates; provided, however, this Section 11(n) 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.


 


(o)
After the Distribution Date and so long as any Rights shall then be outstanding (other than Rights that have become null and void
pursuant to Section 7(e) hereof), the Company shall not, except as permitted by Sections 23, 24, and 27 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.


 


(p)
Anything in this Agreement to the contrary notwithstanding, in the event that the Company, at any time after the Rights Dividend
Declaration Date and prior to the Distribution Date, shall (i) declare a dividend on the outstanding shares of Common Stock payable
in shares of Common Stock, (ii) subdivide any outstanding shares of Common Stock, (iii) combine any of the outstanding shares
of Common Stock into a smaller number of shares or (iv) issue 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 corporation) 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 shall equal 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(p) 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) and this Section 11(p),
the adjustments provided for in this Section 11(p) shall be in addition and prior to any adjustment required pursuant to Section
11(a).


 




    	 	18	 



     


    

 


	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) mail 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 26 hereof. Notwithstanding the foregoing sentence, the failure of the Company to make such certification or give such
notice shall not affect the validity of such adjustment or the force or effect of the requirement for 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 a certificate.


 


	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 shall consolidate with, or merge with and into, any other Person (other than a direct or indirect, wholly-owned Subsidiary
of the Company in a transaction that complies with Section 11(o) hereof), and the Company shall not be 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 complies with Section
11(o) hereof) shall consolidate with, or merge with or into, the Company, and the Company shall be 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 shall be 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 shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer) to any Person
or Persons (other than the Company or any of its direct or indirect, wholly-owned Subsidiaries in one or more transactions, each
of which complies with Section 11(o) 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) being herein referred to as a “Section 13 Event”), then, and 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, shall, upon the expiration of the Redemption Period (as defined
in Section 23(a) hereof), thereafter 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, such
number of validly authorized and issued, fully paid, non-assessable and freely tradable shares of Common Stock of the Principal
Party (as hereinafter defined), which shares shall not be subject to any liens, encumbrances, rights of first refusal, transfer
restrictions or other adverse claims, as shall be equal to the result obtained by


 


(1)
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 a 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 the first occurrence of such Section 11(a)(ii) Event by the Purchase
Price that would be in effect hereunder but for such first occurrence), and


 




    	 	19	 



     


    

 


(2)
dividing that product (which, following the first occurrence of a Section 13 Event, shall be the “Purchase Price”
for each Right and for all purposes of this Agreement) by 50% of the then current per share market price (as determined pursuant
to Section 11(d) hereof) of the shares of Common 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 thereafter 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” shall 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 shall take such steps (including, but not limited to, the reservation of a sufficient number of shares of
its Common Stock) in connection with the consummation of any such transaction as may be necessary to ensure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be possible, to its shares of Common 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 (as determined pursuant to Section 11(d)
hereof) and (B) if no securities or other equity interests are so issued, the Person (including the Company as successor thereto
or as the surviving entity) that is the other constituent party to such merger or consolidation, or, if there is more than one
such Person, the Person that is a constituent party to such merger or consolidation, the Common Stock of which has the highest
aggregate current market price (as determined pursuant to Section 11(d) hereof); and


 


(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 (as determined pursuant to Section 11(d) hereof);


 


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” shall 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 of two or more of which are and have been so registered, “Principal
Party” shall 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 shall 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.


 




    	 	20	 



     


    

 


(c)
The Company shall not consummate any Section 13 Event unless the Principal Party shall have a sufficient number of authorized
shares of its Common 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
shall 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)
(A) prepare and file on an appropriate form a registration statement under the Securities Act, with respect to the Rights and
the securities that may be acquired upon exercise of the Rights on an appropriate form, (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;


 


(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;


 


(iv)
use its best efforts, if such Common Stock of the Principal Party shall be listed or admitted to trading on The NASDAQ Stock Market,
the New York Stock Exchange or on another national 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 The NASDAQ Stock Market, the New York Stock
Exchange or on such securities exchange, or if the securities of the Principal Party that may be acquired upon exercise of the
Rights shall not be listed or admitted to trading on The NASDAQ Stock Market, the New York Stock Exchange or a national 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 or any rights of first refusal or preemptive rights in respect of the Common Stock of the Principal Party subject
to purchase upon exercise of the 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 shall have, 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 Common Stock of such Principal Party at less than the
then current per share market price (as determined pursuant to Section 11(d) hereof) or securities exercisable for, or convertible
into, Common Stock of such Principal Party at less than such then current per share 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 Common 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 such event, the Company shall not consummate any such transaction unless
prior thereto the Company and such Principal Party shall have executed and delivered to the Rights Agent a supplemental agreement
providing that the provision in question of such Principal Party shall have been cancelled, waived or amended, or that the authorized
securities shall be redeemed, so that the applicable provision will have no effect in connection with, or as a consequence of,
the consummation of such transaction.


 




    	 	21	 



     


    

 


(e)
The provisions of this Section 13 shall similarly apply to successive mergers or consolidations or sales or other transfers. In
the event that a Section 13 Event shall occur at any time after the occurrence of a 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.


 


	Section
    14.	Fractional
    Rights; Fractional Shares; Waiver.


 


(a)
The Company shall not be required to issue fractions of Rights except prior to the Distribution Date as provided in Section 11(p)
hereof, or to distribute Rights Certificates that evidence fractional Rights. In lieu of such fractional Rights, there shall be
paid 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 shall be the closing price
of the Rights for the Trading Day immediately prior to the date that such fractional Rights would have been otherwise issuable.
The closing price of the Rights for any day shall be the last sale price, or, in case no such sale takes place on such day, the
average of the high bid and low asked prices, in either case as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange on which the Rights are listed or admitted to
trading, or such other system then in use or, if on any such date the Rights are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a professional market maker making a market in the Rights selected by the
Board. If on any such date no such market maker is making a market in the Rights, the fair value of the Rights on such date as
determined by the Board shall be used. In the event the Rights are listed or admitted to trading on a national securities exchange,
the closing price for any day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the
average of the high bid and low asked prices, regular way, in either case as reported in the principal consolidated transaction
reporting system with respect to the national securities exchange on which the Rights are listed or admitted to trading.


 


(b)
The Company shall not be 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 value of one one-thousandth of a share of Preferred Stock.
For purposes of this Section 14(b), the current market value of one one-thousandth of a share of Preferred Stock shall be one
one-thousandth of the closing price of a share of Preferred Stock (as determined pursuant to Section 11(d)(ii) hereof) 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 shall 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 value
of one share of Common Stock, common stock equivalents or other securities. For purposes of this Section 14(c), the current market
value of one share of Common Stock shall be the closing price of one share of Common Stock (as determined pursuant to Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of such exercise.


 




    	 	22	 



     


    

 


(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 any Section of 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 shall have no duty with respect to, and shall 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 shall have received such a certificate and sufficient monies.


 


	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, in 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 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 of Common Stock 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 shall also constitute certificates for Rights) and each Right shall be 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(f) 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


 




    	 	23	 



     


    

 


(d)
notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights Agent shall have 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 shall be 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 25 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 shall
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, 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 shall incur 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.


 


(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, without limitation, the identity of an Acquiring Person and the determination of “current per
share market price”) be proved or established by the Company prior to the Rights Agent 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, 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 or 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 recovering from the Rights Agent is being
sought.


 




    	 	24	 



     


    

 


(d)
The Rights Agent shall 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 shall 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 shall 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 shall 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 Preferred Stock or any other securities will, when so issued, be validly authorized
and issued, fully paid and non-assessable.


 


(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 any one of 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 instructions 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 by to
be taken by it in accordance with 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 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 that Rights Agent shall not
be liable for any delays arising from the duties under this Section 18(k).


 




    	 	25	 



     


    

 


(l)
The Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (a) any guarantee of signature
and such other documentation as the Rights Agent may reasonably request or (b) 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.


 


	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.


 


(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.


 




    	 	26	 



     


    

 


	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, 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.


 


	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 shall be issued if, and to the extent that, the Company shall be advised by counsel that such issuance
would 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 shall be issued if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof.


 




    	 	27	 



     


    

 


	Section
    23.	Redemption.


 


(a)
The Board may, within its sole discretion, at any time during the period commencing on the Rights Dividend Declaration Date and
ending on the earlier of (i) the Close of Business on the tenth Business Day following the Stock Acquisition Date (or, if the
Stock Acquisition Date shall have occurred prior to the Record Date, the Close of Business on the tenth Business Day following
the Record Date), or (ii) the Close of Business on the Final Expiration 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”); provided, however, that, if the Board authorizes redemption of the Rights on or
after the time a Person becomes an Acquiring Person, then such authorization shall require the concurrence of two-thirds of the
authorized number of members of the Board. Notwithstanding anything contained in this Agreement to the contrary, the Rights shall
not be exercisable after the first occurrence of a Section 11(a)(ii) Event or a Section 13 Event until such time as the Company’s
right of redemption hereunder has expired. The redemption of the Rights by the Board pursuant to this paragraph (a) may be made
effective at such time, on such basis and with such conditions as the Board in its sole discretion may establish. The Company
may, at its option, pay the Redemption Price in cash, shares of Common Stock (based on the current per share market price (as
determined pursuant to Section 11(d) hereof) of the Common Stock at the time of redemption) or any other form of consideration
as the Board shall determine.


 


(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 shall 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 will be made. Neither the Company nor any of its Affiliates or Associates 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 shall not be empowered to effect such exchange at any time after any Acquiring Person, together with all Affiliates
and Associates of such Acquiring Person, 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 discretion may establish. From and after the occurrence of an event specified in Section 13(a) hereof, any Rights
that theretofore have not been exchanged pursuant to this Section 24(a) shall thereafter be exercisable only in accordance with
Section 13 and may not be exchanged pursuant to this Section 24(a).


 




    	 	28	 



     


    

 


(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 and without any notice, the right to exercise such Rights shall terminate and the only right thereafter
of a holder of such Rights shall be to receive that number of shares of Common Stock equal to the number of such Rights held by
such holder multiplied by the Exchange Ratio. 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 shall 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 will be effected and, in the
event of any partial exchange, the number of Rights that will 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.


 


(c)
The Company may at is option, and if there are not sufficient shares of Common Stock issued but not outstanding or authorized
but unissued to permit any exchange of Rights 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 common stock equivalents (as defined in Section 11(a)(iii) hereof) for shares of Common Stock for Common Stock
exchangeable for Rights, at the initial rate of one common stock equivalent for each share of Common Stock, as appropriately adjusted
to reflect stock splits, reverse stock splits, reverse stock split, stock dividends, and other similar transactions after the
date hereof.


 


(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 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). 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 Affiliates and Associates (or
former Beneficial Owners thereof and their Affiliates and Associates) as the Company shall reasonably request in order to determine
if such Rights are null and void. 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).


 


	Section
    25.	Notice
    of Certain Events.


 


(a)
In case the Company shall propose, at any time after the Distribution 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 complies with Section 11(o) 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 each of which complies with
Section 11(o) hereof); or (v) to effect the liquidation, dissolution or winding up of the Company, then, in each such case, the
Company shall give to each registered holder of a Rights Certificate, to the extent feasible, and to the Rights Agent in accordance
with Section 26 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 shall be the earlier;
provided, however, that no such action shall be taken pursuant to this Section 25(a) that will or would conflict
with any provision of the Certificate of Incorporation; provided further, that no such notice shall be required
pursuant to this Section 25 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 25 or any defect therein shall not affect the legality of validity of the action taken by the Company or the vote upon
any such action.


 




    	 	29	 



     


    

 


(b)
In case any Section 11(a)(ii) Event shall occur, then, in any such case, (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
26 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 25 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.


 


(c)
In case any Section 13 Event shall occur, 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 26 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
    26.	Notices.


 


All
notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including by facsimile,
telegram or cable) and mailed or sent or delivered, if to the Company, at its address at:


 


CytRx
Corporation


11726
San Vicente Blvd, Suite 650


Los
Angeles, California 90049


Attention:
Chief Executive Officer


 


And
if to the Rights Agent, at its address at:


 


American
Stock Transfer & Trust Company, LLC


6201
15th Avenue


Brooklyn,
New York 11219


Email:
tcajuste@astfinancial.com


Attention:
Tamara Cajuste


 


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 by first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown on the registry
books of the Company or the Rights Agent, as the case may be.


 




    	 	30	 



     


    

 


	Section
    27.	Supplements
and Amendments.


 


Except
as otherwise provided in this Section 27, 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, (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 such time as any Person becomes an Acquiring
Person, this Agreement shall not be supplemented or amended in any manner that would adversely affect the interests of the holders
of Rights (other than Rights that have become null and void pursuant to Section 7(e) hereof) as such or cause this Agreement to
become amendable other than in accordance with this Section 27. 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 to the Rights
Agent of a certificate from an Authorized Officer that states that the proposed supplement or amendment is in compliance with
the terms of this Section 27, 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.
No supplement or amendment to this Agreement shall be effective unless duly executed by the Rights Agent.


 


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
    28.	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.


 


	Section
    29.	Determinations
    and Actions by the Board.


 


Except
as otherwise specifically provided herein, the Board shall have 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, to exchange or not exchange
the rights in accordance with Section 24, to amend or not amend this Agreement in accordance with Section 27). Without limiting
the rights and 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 (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 the Board acted in good faith and shall be fully protected and incur no liability in reliance thereon.


 


	Section
    30.	Benefits
    of this Agreement.


 


Nothing
in this Agreement shall 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; but this Agreement shall be 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).


 




    	 	31	 



     


    

 


	Section
    31.	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, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall 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, void or unenforceable and the Board determines in its 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 shall not expire until the Close of Business on the tenth Business Day following
the date of such determination by the Board; further, provided, however, if such excluded provision shall affect the rights, immunities,
duties or obligations of the Rights Agent, the Rights Agent shall be entitled to resign immediately upon written notice to the
Company.


 


	Section
    32.	Governing
    Law.


 


This
Agreement, each Right, and each Rights Certificate issued hereunder shall be deemed to be a contract made under the internal 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 and performed entirely within such State.


 


	Section
    33.	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
    34.	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.


 


	Section
    35.	Force
Majeure.


 


Notwithstanding
anything to the contrary contained herein, the Rights Agent shall 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, insurrection, fire, earthquake, storm,
flood, strike, work stoppage, labor dispute, accident or failure or malfunction of any utilities, means of communication or computer
(software or hardware) services or similar occurrence).


 


[Signature
Page To Follow On Next Page]


 




    	 	32	 



     


    

 


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


 


	 	CYTRX
    CORPORATION
	 	 	 
	 	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 Legregin 
	 	Name:	Michael
    Legregin
	 	Title:	Senior
    Vice President 


 




    	 	33	 



     


    

 


Exhibit
A


 


Certificate
of Designation of 


Series
B Junior Participating Preferred Stock of CytRx Corporation


 




    	 	 	 



     


    

 


Exhibit
B


 


Summary
of Rights


 




    	 	 	 



     


    

 


Exhibit
C


 


Form
of Rights Certificate