<PAGE>
As filed with the Securities and Exchange Commission on March 28, 1996
Registration No. 33-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
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 juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
600 College Road East, CN 5308
Princeton, New Jersey 08540-5308
(609) 987-8200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
T. Jerome Madison
Vice President, Chief Financial Officer and Secretary
Cytogen Corporation
600 College Road East, CN 5308
Princeton, New Jersey 08540-5308
(609) 987-8200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
James J. Marino, Esquire
Dechert Price & Rhoads
Princeton Pike Corporate Center, CN 5218
Princeton, New Jersey 08543-5218
(609) 520-3200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Title of each class Amount to be Proposed maximum Proposed maximum Amount of
of securities to be registered offering price per aggregate registration
registered share or unit(1) offering price(1) fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 5,000,000 shares $7.375 $36,875,000 $12,716
share
===========================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act based on the average of the
high and low prices of the Common Stock as reported on the Nasdaq National
Market on March 26, 1996.
_________________________________
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION -- DATED MARCH 28, 1996
PROSPECTUS
CYTOGEN CORPORATION
5,000,000
Shares of Common Stock
($.01 par value)
-----------------------
All of the shares (the "Shares") of Common Stock, par value $.01 per
share ("Common Stock"), of Cytogen Corporation, a Delaware corporation
("Cytogen" or the "Company"), offered hereby are being offered for sale by
Cytogen from time to time.
The Shares will be sold at prices and on terms to be determined at the
time of a sale or sales. The Shares may be sold on a negotiated or competitive
bid basis to or through underwriters or dealers designated from time to time. In
addition, the Shares may be sold by Cytogen to other purchasers directly or
through agents. Certain terms of the sale of the Shares in respect of which this
Prospectus is being delivered, including, where applicable, the names of the
underwriters, dealers and agents, the public offering price, the proceeds to
Cytogen from such sale, and any applicable commissions, discounts and other
terms constituting compensation to such underwriters, dealers or agents, will be
set forth in a Prospectus Supplement, to the extent required (the "Prospectus
Supplement"). See "Plan of Distribution".
--------------------
The Common Stock is quoted on the Nasdaq National Market ("Nasdaq")
under the symbol "CYTO". On March 26, 1996, the last reported sale price of the
Common Stock, as reported on Nasdaq, was $7.125 per share.
Cytogen will pay expenses in connection with the offering estimated to
be $75,000, not including any selling expenses which may be paid.
----------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------------
The date of this Prospectus is March 28, 1996
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy, nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
Page
----
<S> <C>
AVAILABLE INFORMATION....................................................... 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................. 3
THE COMPANY................................................................. 5
USE OF PROCEEDS............................................................. 5
PLAN OF DISTRIBUTION........................................................ 5
LEGAL MATTERS............................................................... 7
EXPERTS..................................................................... 7
</TABLE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN
CONNECTION WITH THIS OFFERING. ANY INFORMATION OR REPRESENTATION NOT CONTAINED
OR INCORPORATED BY REFERENCE HEREIN MUST NOT BE RELIED ON AS HAVING BEEN
AUTHORIZED BY CYTOGEN. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY THE SECURITIES OFFERED HEREBY IN ANY STATE
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. EXCEPT
WHERE OTHERWISE INDICATED, THIS PROSPECTUS SPEAKS AS OF ITS DATE AND NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF CYTOGEN SINCE THE DATE HEREOF.
- 2 -
<PAGE>
AVAILABLE INFORMATION
---------------------
Cytogen is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith, files
reports, proxy statements and other information with the Commission. Such
reports, proxy statements and other information filed by Cytogen can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices of the Commission: New York Regional Office, Seven
World Trade Center, Suite 1300, New York, New York 10048; and Chicago Regional
Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Common Stock is traded on the Nasdaq National Market and
such reports, proxy statements and other information concerning Cytogen are
available for inspection at the offices of the National Association of
Securities Dealers, Inc. (the "NASD"), 9513 Key West Avenue, Rockville, Maryland
20850.
Cytogen has filed with the Commission a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act, with respect to the Shares offered hereby.
This Prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. Statements contained in this Prospectus or in any document
incorporated by reference as to the contents of any contract or other documents
referred to herein or therein are not necessarily complete and in each instance,
reference is made to the copy of such documents filed as an exhibit to the
Registration Statement or such other documents. Each such statement is qualified
in its entirety by such reference. For further information with respect to
Cytogen and the Shares offered hereby, reference is hereby made to the
Registration Statement, exhibits and schedules.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
-----------------------------------------------
Cytogen hereby incorporates by reference into this Prospectus (i) its
Annual Report on Form 10-K for the Fiscal Year Ended December 31, 1995 which
contains audited financial statements for Cytogen's latest fiscal year for which
a Form 10-K was required to have been filed, (ii) all other reports filed by
Cytogen pursuant to Section 13(a) or 15(d) of the Exchange Act since December
31, 1995, including but not limited to the Current Report on Form 8-K filed by
Cytogen with the Commission dated February 23, 1996, and (iii) the description
of the Common Stock, par value $.01 per share, as contained in its registration
statement on Form 8-A declared effective on March 9, 1992.
All documents and reports filed by Cytogen with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date
hereof and prior to the filing of a post-effective amendment to the Registration
Statement which indicates that all Shares offered hereby have been sold or which
deregisters all shares of Common Stock then remaining unsold, shall be deemed to
be incorporated by reference into this Prospectus and to be a part hereof from
the respective dates of filing of such documents or reports.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in a subsequently filed document that also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
- 3 -
<PAGE>
CYTOGEN HEREBY UNDERTAKES TO PROVIDE, WITHOUT CHARGE, TO EACH PERSON
(INCLUDING ANY BENEFICIAL OWNER) TO WHOM THIS PROSPECTUS IS DELIVERED, UPON
WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY AND ALL OF THE INFORMATION
THAT HAS BEEN INCORPORATED BY REFERENCE IN THIS PROSPECTUS (NOT INCLUDING
EXHIBITS TO SUCH INFORMATION UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED
BY REFERENCE INTO SUCH INFORMATION). SUCH REQUESTS SHOULD BE DIRECTED TO THE
ATTENTION OF CORPORATE COMMUNICATIONS AT CYTOGEN'S PRINCIPAL EXECUTIVE OFFICES
AT 600 COLLEGE ROAD EAST, CN 5308, PRINCETON, NEW JERSEY 08540-5308; TELEPHONE:
(609) 987-8221.
- 4 -
<PAGE>
THE COMPANY
-----------
The Company is a biopharmaceutical company engaged in the discovery,
development, manufacture and marketing of products to better diagnose and treat
cancer and other related immunologic diseases. The Company's current portfolio
of products provides the targeted delivery of diagnostic and therapeutic
substances directly to the sites of disease, as well as cellular therapies for
the treatment of cancer and infectious diseases. The Company's business
objective is to use patented and proprietary technologies to develop specific in
vivo cancer diagnostic imaging agents and targeted therapeutic products that
respond to unmet medical needs and can benefit patients with cancer and other
diseases. Its wholly-owned subsidiary, Cellcor, Inc. ("Cellcor"), a Delaware
corporation, is a biotechnology company. Cytogen is incorporated under the laws
of the State of Delaware. Cytogen's principal executive office is located at 600
College Road East, Princeton, New Jersey 08540 and its telephone number is (609)
987-8200.
USE OF PROCEEDS
---------------
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the offering will be used for general corporate purposes,
including product acquisition, product commercialization, late-stage product
development activities and research and development projects of Cytogen and its
subsidiaries, and selling, general and administrative expenses. Management of
Cytogen believes that its current sources of liquidity will be sufficient to
meet anticipated cash requirements into 1997. To date, the Company's major uses
of cash have included research and development costs, general and administrative
expenses, expenditures for property, plant and equipment and expenses related to
marketing and selling of its products.
In connection with its product commercialization, product development
efforts and research and development projects, Cytogen anticipates using a
portion of the net proceeds for expanded product development for ProstaScint,
accelerated development of Cytogen's Genetic Diversity Library technology and
funding of Cellcor's FDA-designated Pivotal Phase III clinical trial of
autolymphocyte therapy in patients with advanced metastatic renal cell
carcinoma.
The timing, amount and nature of these expenditures are dependent upon, and
may vary in accordance with, numerous factors including the progress of
Cytogen's research and development program, Cytogen's assessment of the timing
of FDA approval and the market potential of its products and that of competing
or complementary products, and other factors beyond Cytogen's control. Pending
application of the proceeds to the purposes described above, the net proceeds
from the offering will be invested in high-grade, short-term, interest-bearing
investments.
PLAN OF DISTRIBUTION
--------------------
The Shares offered hereby may be sold by Cytogen on a negotiated or
competitive bid basis through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate, dealers or agents
designated from time to time, or directly to other purchasers. The distribution
of the Shares offered hereby may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. To the extent required, any Prospectus
Supplement with respect to the Shares will set forth the terms of the offering
and the proceeds to Cytogen from the sale thereof, any underwriting discounts
and other items of price, and any discounts or concessions allowed or reallowed
or paid to dealers. Any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
- 5 -
<PAGE>
If underwriters are utilized, the Shares being sold to them will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price, or at varying prices determined at the time of
sale. The Shares may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. To the extent required, the underwriter or
underwriters with respect to the Shares being offered by Cytogen will be named
in the Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover page of such Prospectus Supplement. Any underwriting agreement will
provide that the obligations of the underwriters are subject to certain
conditions precedent.
If a dealer is utilized in the sale of the Shares, Cytogen will sell the
Common Stock to the dealer as principal. The dealer may then resell the Common
Stock to the public at varying prices to be determined by the dealer at the time
of sale. To the extent required, any dealer involved in the offer or sale of the
Shares in respect of which this Prospectus is delivered will be set forth in the
Prospectus Supplement.
The Shares may be sold directly by Cytogen or through agents designated by
Cytogen from time to time. To the extent required, any agent involved in the
offer or sale of the Shares in respect of which this Prospectus is delivered
will be set forth in the Prospectus Supplement. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment.
If so indicated in the Prospectus Supplement, Cytogen may authorize
underwriters, dealers or other persons acting as Cytogen's agent to solicit
offers by certain institutions to purchase Shares from Cytogen pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pensions funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
Cytogen. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the Shares shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters, dealers and such other persons will not
have any responsibility in respect of the validity or performance of such
contracts. The Prospectus Supplement will set forth the commission payable for
solicitation of such contracts.
Any underwriters, dealers and agents that participate in the distribution
of the Common Stock may be deemed to be underwriters as the term is defined in
the Securities Act, and any discounts or commissions received by them from
Cytogen and any profits on the resale of the Common Stock by them may be deemed
to be underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements that may be
entered into with Cytogen, to indemnification against or to contribution toward
certain civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that the underwriters or agents may be
required to make in respect of such liabilities.
Underwriters and agents may engage in other transactions with or perform
other services for Cytogen. To the extent required, any such relationships will
be set forth in a Prospectus Supplement.
Cytogen will pay all of the expenses of the Offering.
- 6 -
<PAGE>
LEGAL MATTERS
-------------
The validity of the Shares of Common Stock offered hereby has been passed
on for Cytogen by Dechert Price & Rhoads, Princeton, New Jersey.
EXPERTS
-------
The audited consolidated financial statements and schedules of Cytogen
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement, to the extent and for the periods indicated in their report, have
been audited by Arthur Andersen LLP, independent public accountants, and are
incorporated herein in reliance upon the authority of said firm as experts in
giving said reports.
- 7 -
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an itemized estimate of fees and expenses
payable by the Registrant in connection with the offering of the securities
described in this Registration Statement, other than underwriting discounts and
commissions.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee.......................... $12,716
Legal fees and expenses....................... 20,000
Accounting fees and expenses.................. 5,000
Printing expenses............................. 10,000
Nasdaq National Market Listing Fee............ 17,500
Miscellaneous................................. 9,784
Total.................................... $75,000
</TABLE>
Item 15. 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,
in connection with the matters in issue, 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 in connection with 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, in connection with the matters in
issue, 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 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.
II-1
<PAGE>
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 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.
II-2
<PAGE>
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 16. EXHIBITS.
NO. DESCRIPTION
- --- -----------
4.1 Restated Certificate of Incorporation, as amended(1)
4.2 By-laws, as amended(1)
4.3 Specimen of Common Stock Certificate(2)
5.0 Opinion of Dechert Price & Rhoads regarding validity
23.1 Consent of Dechert Price & Rhoads (contained in opinion filed as
Exhibit 5.0)
23.2 Consent of Arthur Andersen LLP
24.0 Powers of Attorney for each person executing the Registration
Statement on behalf of the Registrant are contained on the signature
pages to the Registration Statement.
_________________
(1) Previously filed as exhibits to Registrant's Registration Statement on
Form S-4 (File No. 33-88612) and incorporated herein by reference
thereto.
(2) Filed as an exhibit to Amendment No. 1 to Form S-1 Registration
Statement (No. 33-5533) and incorporated herein by reference.
Item 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement;
(2) 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; and
(3) 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.
(b) 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 section 15(d)
of the Securities Exchange Act of 1934 (and where applicable, each
II-3
<PAGE>
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.
(c) 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 Act 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 proceeding) 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 Act and will be governed by the final
adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-4
<PAGE>
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the Town of Princeton, State of New Jersey, on March 26, 1996.
CYTOGEN CORPORATION
By: /s/ Thomas J. McKearn
------------------------------
Thomas J. McKearn
President and Chief
Executive Officer
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William C. Mills III Chairman of the Board of Directors March 26, 1996
- ------------------------------
William C. Mills III
/s/ Thomas J. McKearn President, Chief Executive Officer and March 26, 1996
- ------------------------------ Director (Principal Executive Officer)
Thomas J. McKearn
/s/ T. Jerome Madison Vice President, Chief Financial March 26, 1996
- ------------------------------ Officer, Secretary and Director
T. Jerome Madison (Principal Financial and Accounting
Officer)
/s/ Donald E. O'Neill Director March 26, 1996
- ------------------------------
Donald E. O'Neill
/s/ Robert Hendrickson Director March 26, 1996
- ------------------------------
Robert Hendrickson
/s/ Ronald J. Brenner Director March 26, 1996
- ------------------------------
Ronald J. Brenner
/s/ John E. Bagalay, Jr. Director March 26, 1996
- ------------------------------
John E. Bagalay, Jr.
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Charles E. Austin
- ------------------------------ Director March 26, 1996
Charles E. Austin
/s/ Bruce R. Ross Director March 26, 1996
- ------------------------------
Bruce R. Ross
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
5 Legal Opinion of Dechert Price & Rhoads
23.2 Consent of Arthur Andersen LLP
<PAGE>
Exhibit 5.0
March 28, 1996
Cytogen Corporation
600 College Road East
Princeton, New Jersey 08540
Re: Form S-3 Registration Statement
-------------------------------
Ladies and Gentlemen:
We have acted as counsel to Cytogen Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-3 (the "Registration Statement") being filed
today with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act"), relating to the offer and sale from
time to time pursuant to Rule 415 of the Securities Act of up to 5,000,000
shares (the "Shares") of Cytogen's Common Stock, par value $.01 per share.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion, including the following: (a) the Certificate of Incorporation of the
Company, as amended; and (b) the By-laws of the Company filed as Exhibits to the
Registration Statement.
In rendering this opinion, we have assumed that (a) the Registration
Statement and any amendments thereto (including post-effective amendments) will
have become effective and comply with all applicable laws; (b) the Registration
Statement will be effective and will comply with all applicable laws at the time
the Shares are offered or issued as contemplated by the Registration Statement;
(c) a Prospectus Supplement will have been prepared and filed with the
Securities and Exchange Commission describing the Shares offered thereby and
will comply with all applicable laws; (d) all Shares will be issued and sold in
compliance with applicable federal and state securities laws and in the manner
stated in the Registration Statement and the appropriate Prospectus Supplement
thereto; and (e) a definitive purchase, underwriting or similar agreement with
respect to any Shares offered or issued will have been duly authorized and
validly executed and delivered by Cytogen and the other parties thereto.
Based upon and subject to the foregoing, we are of the opinion that
the Shares, when both (a) the Board of Directors of Cytogen has taken all
necessary corporate action to approve the issuance of and the terms of the
offering of the Shares and related matters and (b) certificates representing the
Shares have been duly executed, countersigned, registered and delivered in
accordance with the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor (not
less than the par value of the Common Stock) provided for therein, will be
legally and validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.0 to the
Registration Statement and to the use of our name in the Prospectus portion
thereof and any Prospectus Supplement thereto, under the caption "Legal
Matters."
Very truly yours,
DECHERT PRICE & RHOADS
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 2, 1996
(except with respect to the matter discussed in Note 5 as to which the date is
February 29, 1996), included in CYTOGEN Corporation's Form 10-K for the year
ended December 31, 1995 and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, PA
March 27, 1996
