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As filed with the Securities and Exchange Commission on January 25, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
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CELLCOR, INC.
1988 STOCK OPTION PLAN
1992 STOCK OPTION AND RESTRICTED STOCK PLAN
1992 DIRECTOR STOCK PLAN
1995 STOCK INCENTIVE PLAN
(Full titles of the Plans)
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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)
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Copy to:
James J. Marino, Esq.
Dechert Price & Rhoads
997 Lenox Drive, Suite 210
Lawrenceville, New Jersey 08648
(609) 520-3200
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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 606,952 shares $6.16 $3,738,824 $1,290
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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 January 19, 1996.
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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
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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 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
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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 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.
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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 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.
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.
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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.
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 22nd day of January, 1996.
CYTOGEN CORPORATION
By:/s/ Thomas J. McKearn
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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
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<S> <C> <C>
/s/ William C. Mills III Chairman of the Board of Directors January 22, 1996
- --------------------------
William C. Mills III
/s/ Thomas J. McKearn President, Chief Executive Officer January 22, 1996
- -------------------------- and Director (Principal Executive
Thomas J. McKearn Officer)
/s/ T. Jerome Madison Vice President, Chief Financial January 22, 1996
- --------------------------- Officer, Secretary and Director
T. Jerome Madison (Principal Financial and
Accounting Officer)
/s/ Robert F. Hendrickson Director January 22, 1996
- ---------------------------
Robert F. Hendrickson
/s/ Donald E. O'Neill Director January 22, 1996
- ---------------------------
Donald E. O'Neill
/s/ Charles E. Austin Director January 22, 1996
- ---------------------------
Charles E. Austin
- --------------------------- Director January 22, 1996
Bruce R. Ross
/s/ Ronald J. Brenner Director January 22, 1996
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Ronald J. Brenner
/s/ John E. Bagalay Director January 22, 1996
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John E. Bagalay
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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)
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EXHIBIT 5.1
January 25, 1996
Cytogen Corporation
600 College Road East
CN 5308
Princeton, NJ 08540-5308
Gentlemen:
We refer to the registration of 606,952 shares (the "Shares") of
Common Stock, $.01 par value, of Cytogen Corporation (the "Company") to be
offered pursuant to the Cellcor, Inc. 1988 Stock Option Plan, 1992 Stock
Option and Restricted Stock Plan, 1992 Director Stock Plan, and 1995 Stock
Incentive Plan (the "Plans") 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 Plans, 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 Plans, 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.
January 24, 1996
