EXHIBIT 5
[ALSTON/&/BIRD LLP LETTERHEAD]
August 21, 2001
CytRx Corporation
154 Technology Parkway
Norcross, Georgia 30092
Re: Form S-3 Registration Statement - Resale of Stock on Behalf of Selling
Stockholders
Ladies and Gentlemen:
We have acted as counsel to CytRx Corporation, a Delaware corporation (the
"Company"), in connection with the above-referenced Registration Statement on
Form S-3 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and covering 1,025,000 shares (the "Shares") of the
Company's common stock, $.001 par value ("Common Stock"), which are being
offered for the account of the selling stockholders specified therein. The
Company will not receive any proceeds from the sale of the Shares. The opinion
hereafter set forth is given to the Commission at the request of the Company
pursuant to Item 16 of Form S-3 and Item 601(b)(5) of Regulation S-K.
In the capacity described above, we have considered such matters of law and
of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Company, certificates of public officials and such other documents as we have
deemed appropriate as a basis for the opinions hereinafter set forth. The
opinions set forth herein are limited to the Law of the State of Delaware.
Furthermore, in conducting our examination, we assumed that with respect to
the issuance of the Shares issuable upon exercise of the Warrants in accordance
with the Warrant Agreements (the "Underlying Shares"), the Company shall have
sufficient authorized and unissued shares of common stock available at the time
of such issuance; that any required consideration to be received for the
issuance of the Underlying Shares will be paid in accordance with the current
terms of such agreements and the current terms of the resolutions of the Board
of Directors authorizing the issuance of the Underlying Shares; that the
statements made in such agreements, including without limitation, the
representations and warranties, are true and correct; and that the relevant
provisions of the Certificate of Incorporation and Bylaws of the Company and the
Delaware General Corporations Law in effect at the time of issuance of any of
the Underlying Shares will not differ in any relevant respect from the relevant
provisions of the
CytRx Corporation
August 21, 2001
Page 2
Certificate of Incorporation and Bylaws of the Company and the Delaware General
Corporations Law in effect as of the date of this opinion.
Based upon the foregoing, it is our opinion that the Shares are or will be
upon issuance by the Company, legally and validly issued, fully paid and
nonassessable.
This opinion letter is provided to you for your benefit and for the benefit
of the Commission solely with regard to the Registration Statement, may be
relied upon by you and the Commission only in connection with the Registration
Statement, and may not be relied upon by any other person or for any other
purpose without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Steven L. Pottle
-------------------------------
Steven L. Pottle, a Partner
SLP:eld