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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 10, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
CYTOGEN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-2322400
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
600 COLLEGE ROAD EAST, CN 5308, PRINCETON, NEW JERSEY 08540-5308
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
_________________
CYTOGEN CORPORATION
1995 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
_________________
MR. T. JEROME MADISON
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
CYTOGEN CORPORATION
600 COLLEGE ROAD EAST, CN 5308, PRINCETON, NEW JERSEY 08540-5308, TELEPHONE:
(609) 987-8200
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(609) 987-8200
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
_________________
Copy to:
JAMES J. MARINO, ESQ.
DECHERT PRICE & RHOADS
997 LENOX DRIVE, SUITE 210
LAWRENCEVILLE, NEW JERSEY 08648
(609) 520-3200
_________________
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED PROPOSED MAXIMUM
TITLE OF TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE (1) PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock 2,402,635 shares $4.9688 $11,938,212.78 $4,116.63
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with paragraph (h) of Rule 457 of the Securities Act of 1933, as
amended, on the basis of the average of the high and low prices of the
Common Stock reported on the Nasdaq National Market on October 6, 1995.
_________________________
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The latest Annual Report on Form 10-K of Cytogen Corporation
(the "Company"), which at the date of this Registration Statement on Form S-8
(this "Registration Statement") is its Annual Report on Form 10-K for the fiscal
year ended December 31, 1994.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities and Exchange Act of 1934 (the "Exchange Act") since the end of
the fiscal year covered by the Company's latest Annual Report on Form 10-K.
(c) The description of the Common Stock, par value $.01 per
share, of the Company (the "Common Stock") contained in the Company's
Registration Statement on Form 8-A declared effective on March 9, 1992, together
with all reports and other documents filed with the Commission for the purpose
of updating or otherwise amending that description after the date of this
Registration Statement.
All documents filed by the Company after the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference into this Registration
Statement will be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this
Registration Statement or any other subsequently cited document which also is or
is deemed to be incorporated by reference into this Registration Statement
modifies or supersedes that statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides generally and in pertinent part that a Delaware corporation may
indemnify its directors, officers, employees and agents against expenses
(including attorneys' fees), judgments, fines and settlements actually and
reasonably incurred by them in connection with any civil, criminal,
administrative or investigative action, suit or proceeding (except actions by or
in the right of the corporation), if they acted in good faith and in a manner
they reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal suit or proceeding, they had no
reasonable cause to believe their conduct was unlawful. Section 145 further
provides that, in connection with the defense or settlement of any action by or
in the right of the corporation, a Delaware corporation may indemnify its
directors, officers, employees and agents against expenses actually and
reasonably incurred by them if they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation, absent a determination by a
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court that such indemnity is proper. Section 145 further permits a Delaware
corporation to grant its directors, officers, employees and agents additional
rights of indemnification through bylaw provisions and otherwise.
Section 145 further permits a Delaware corporation to purchase and
maintain insurance on behalf of any persons who are or were directors, officers,
employees or agents of the corporation, or are or were serving at the request of
the corporation as directors, officers, employees or agents of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against them and incurred by them in any such capacity, or
arising out of their status as such, whether or not the corporation would have
the power to indemnify them against such liability under the other provisions of
Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (relating to
liability for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) or (iv) for any transaction from which the director derived an
improper personal benefit.
The Restated Certificate of Incorporation, as amended, of the Registrant
provides for the indemnification of the Registrant's directors, officers,
employees and agents to the fullest extent provided by the DGCL.
Article IX, Sections 1 and 2 of the Registrant's By-laws, as amended,
provide as follows:
"SECTION 1. A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit.
SECTION 2. Each person who has or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a
director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged
action or inaction in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent permitted by the Delaware General
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Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in this
Section 2, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 2 shall be a contract right
and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition as authorized by the Board of Directors; provided, however,
that if the Delaware General Corporation Law so requires, the payment of
such expenses incurred by a director, officer, employee or agent of the
Corporation in his or her capacity as such in advance of the final
disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director,
officer, employee or agent of the Corporation, to repay all amounts so
advanced if it shall ultimately be determined that such director,
officer, employee or agent of the Corporation is not entitled to be
indemnified under this Section 2 or otherwise."
The Registrant has entered into identical indemnification agreements
with certain of its directors, officers and consultants which generally put into
effect Sections 1 and 2 of its By-laws.
In addition, the Registrant's By-laws provide that the Registrant has
the power to purchase liability insurance policies covering its directors,
officers, employees and agents, whether or not the Registrant would have the
power to indemnify such person under the DGCL. The Registrant currently
maintains such insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit 4.1 Restated Certificate of Incorporation, as amended(1)
Exhibit 4.2 By-laws of Cytogen Corporation, as amended(1)
Exhibit 4.3 Specimen of Common Stock Certificate(2)
Exhibit 4.4 Cytogen Corporation 1995 Stock Option Plan(3)
Exhibit 5.1 Legal Opinion of Dechert Price & Rhoads
Exhibit 23.1 Consent of Arthur Andersen LLP
Exhibit 23.2 Consent of Dechert Price & Rhoads
Exhibit 24.1 Power of Attorney
_____________
(1) Filed as an exhibit to Form S-4 Registration Statement (No. 33-88612) and
incorporated herein by reference.
(2) Filed as an exhibit to Amendment No. 1 to Form S-1 Registration Statement
(No. 33-5533) and incorporated herein by reference.
(3) Filed as Appendix B to the Registrant's Proxy Statement filed with the
Commission on April 18, 1995 and incorporated herein by reference.
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ITEM 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
a. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
Provided, however, that paragraphs 1(a)(i) and 1(a)(ii) do not apply if
this Registration Statement is on Form S-3, Form S-8 or Form F-3, and
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
b. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
c. To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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3. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceedings) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Township of Princeton, and the State of New Jersey, on this
9th day of October, 1995.
CYTOGEN CORPORATION
By:/s/ Thomas J. McKearn
-------------------------
Thomas J. McKearn
President and Chief Executive
Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas J. McKearn and T. Jerome Madison or either
of them, his attorney-in-fact, each with the power of substitution, for him in
any and all capacities, to sign any amendments to this Registration Statement,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that either of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William C. Mills III Chairman of the Board of Directors October 9, 1995
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William C. Mills III
/s/ Thomas J. McKearn President, Chief Executive Officer and October 9, 1995
- --------------------------- Director (Principal Executive Officer)
Thomas J. McKearn
/s/ T. Jerome Madison Vice President, Chief Financial Officer, October 9, 1995
- --------------------------- Secretary and Director (Principal
T. Jerome Madison Financial and Accounting Officer)
/s/ Robert F. Hendrickson Director October 9, 1995
- ---------------------------
Robert F. Hendrickson
/s/ Donald E. O'Neill Director October 9, 1995
- ---------------------------
Donald E. O'Neill
/s/ Charles E. Austin Director October 9, 1995
- ---------------------------
Charles E. Austin
/s/ Bruce R. Ross Director October 9, 1995
- ---------------------------
Bruce R. Ross
</TABLE>
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EXHIBIT INDEX
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<S> <C> <C>
Exhibit 5.1 Legal Opinion of Dechert Price & Rhoads Page
Exhibit 23.1 Consent of Arthur Andersen LLP Page
Exhibit 23.2 Consent of Dechert Price & Rhoads (Included in Exhibit 5.1)
Exhibit 24.1 Power of Attorney (See Page 7)
</TABLE>
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EXHIBIT 5.1
October 10, 1995
Cytogen Corporation
600 College Road East
CN 5308
Princeton, NJ 08540-5308
Gentlemen:
We refer to the registration of 2,402,635 shares (the "Shares") of
Common Stock, $.01 par value, of Cytogen Corporation (the "Company") to be
offered pursuant to the Cytogen Corporation 1995 Stock Option Plan (the
"Plan") in a registration statement on Form S-8 (the "Registration
Statement") to be filed under the Securities Act of 1933, as amended (the
"Act").
In rendering this opinion, we have examined the Plan, copies of the
Registration Statement, copies of the corporate charter and by-laws of the
Company, as amended, copies of certain resolutions of the Board of
Directors of the Company and such other corporate records and documents as
we have deemed necessary in order to enable us to express the opinion set
forth below.
Based on the foregoing examination, it is our opinion that, when
issued against receipt of the agreed purchase price therefor pursuant to
the exercise of options granted under the Plan, the Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
/s/ Dechert Price & Rhoads
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EXHIBIT 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-8 Registration Statement of our report dated
February 27, 1995, included in Cytogen Corporation's Form 10-K for the year
ended December 31, 1994, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, Pa.
October 9, 1995
