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§18.364 Change of ControlChange of Control If (i) the Company agrees to sell substantially all of its assets for cash or property or for a combination of cash and property, (ii) the Company agrees to any merger, consolidation, reorganization, division or other corporate transaction in which Stock is or will be converted into another security or into the right to receive cash, property or securities, or (iii) a change in control of the Company occurs, which for purposes of this section is deemed to occur if any "person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934) is or becomes the "beneficial owner" (as such term is used in Section 13d-3 of the Regulations promulgated under the Securities Exchange Act of 1934), directly or indirectly, in any transaction or series of transactions that has not been approved by the Board of (a) shares of Common Stock of the Company representing 25% or more of the voting power of the then outstanding shares of Common Stock, (b) shares of Series A Preferred Stock of the Company representing 45% or more of the voting power of the then- outstanding shares of Series A Preferred Stock, (c) shares of any other class of security or any combination of any securities of the Company then outstanding representing 30% of the combined voting power of such class or combination of securities which has the power to elect a majority of directors of the Company (with each of the events described in (i) through (iii) above constituting a "Extraordinary Transaction"), then each Stock Option shall become immediately and fully vested and immediately exercisable for Stock. In the event of any Extraordinary Transaction, the Committee, in its discretion, may provide that outstanding Stock Options may be cancelled unilaterally by the Company in exchange for an amount equal to (x) the same consideration each Employee and Non-Employee Director otherwise would receive with respect to Stock subject to the Stock Option if such Stock has been sold, surrendered, exchanged or otherwise in the Extraordinary Transaction, less (y) the aggregate Option Price with respect to the Stock subject to such Option. CYTRX Corporation 4/21/94 ARTICLE 9. CHANGE OF CONTROL 9.1 Change in Control . For purposes of this Article 9, a "Change in Control" of the Company shall mean (a) the sale, lease, exchange or other transfer of all or substantially all of the assets of the Company (in one transaction or in a series of related transactions) to a corporation that is not controlled by the Company, (b) the approval by the shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company, or (c) a change in control of the Company of a nature that would be required to be reported (assuming such event has not been "previously reported") in response to Item I(a) of the Current Report on Form 8-K, as in effect on the effective date of the Plan, pursuant to Section 13 or 15(d) of the Exchange Act, whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred at such time as (i) any Person becomes after the date this Plan is approved or ratified by the Company's shareholders the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 20% or more of the combined voting power of the Company's outstanding securities ordinarily having the right to vote at elections of directors, or (ii) individuals who constitute the board of directors of the Company on the date this Plan is approved or ratified by the Company's shareholders cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to such date whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors comprising or deemed pursuant hereto to comprise the Board on the date this Plan is approved or ratified by the Company's shareholders (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director) shall be, for purposes of this clause (ii) and the following sentence, considered as though such person were a member of the Board on the date this Plan is approved or ratified by the Company's shareholders. Notwithstanding anything in the foregoing to the contrary, no Change in Control shall be deemed to have occurred for purposes of this Section 9.1 by virtue of any transaction which shall have been approved by the affirmative vote of at least a majority of the members of the Board on the date this Plan is approved or ratified by the Company's shareholders.9.2 Acceleration of Vesting . If a Change of Control of the Company shall occur, the Committee, in its sole discretion, may determine that all outstanding Options shall become immediately exercisable i n full and shall remain exercisable during the remaining term thereof, regardless of whether the employment or other status of the Participants with respect to which Options have been granted shall continue with the Company or any Subsidiary. 9.3 Cash Payment . If a Change of Control of the Company shall occur, then the Committee, in its sole discretion, and without the consent of any Participant effected thereby, may determine that some or all Participants holding outstanding Options shall receive, with respect to some or all of the shares of Common Stock subject to such Options, as of the effective date of any such Change in Control of the Company, cash in an amount equal to the excess of the Fair Market Value of such shares immediately prior to the effective date of such Change of Control of the Company over the exercise price per share of such Options. 9.4 Limitation on Change in Control Payments . Notwithstanding anything in Section 9.2 or 9.3 above to the contrary, if, with respect to a Participant, the acceleration of the exercisability of an Option as provi ded in Section 9.2 or the payment of cash in exchange for all or part of an Option as provided in Section 9.3 above (which acceleration or payment could be deemed a "payment" within the meaning of Section 280G(b)(2) of the Code), together with any other payments which such Participant has the right to receive from the Company or any corporation which is a member of an "affiliated group" (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code), then the acceleration of exercisability and the payments to such Participant pursuant to Sections 9.2 and 9.3 above shall be reduced to the largest amount as, in the sole judgment of the Committee, will result in no portion of such payments being subject to the excise tax imposed by Section 4999 of the Code. WTC Industries, Inc. 6/27/94