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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 29, 1996
REGISTRATION NO. 333-
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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
1988 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(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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Common Stock 200,000 shares $7.5313 $1,506,260.00 $519.40
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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 May 22, 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, 1995.
(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
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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 fact that he
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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 4.4 Cytogen Corporation 1988 Stock Option Plan for Non-Employee
Directors(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 an exhibit to Form S-8 Registration Statement (No. 33-30595)
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
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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.
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 May, 1996.
CYTOGEN CORPORATION
By:/s/ Thomas J. McKearn
-------------------------
Thomas J. McKearn
President and Chief Executive
Officer
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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
May 29, 1996
Cytogen Corporation
600 College Road East
CN 5308
Princeton, NJ 08540-5308
Gentlemen:
We refer to the registration of 200,000 shares (the "Shares") of Common
Stock, $.01 par value, of Cytogen Corporation (the "Company") to be offered
pursuant to the Cytogen Corporation 1988 Stock Option Plan for Non-Employee
Directors (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
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
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.
May 28, 1996
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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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SIGNATURE TITLE DATE
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/s/ William C. Mills III Chairman of the Board of Directors May 22, 1996
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William C. Mills III
/s/ Thomas J. McKearn President, Chief Executive Officer and May 22, 1996
- --------------------------- Director (Principal Executive Officer)
Thomas J. McKearn
/s/ T. Jerome Madison Vice President, Chief Financial May 22, 1996
- --------------------------- Officer, Secretary and Director
T. Jerome Madison (Principal Financial and Accounting
Officer)
/s/ Robert F. Hendrickson Director May 22, 1996
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Robert F. Hendrickson
/s/ Donald E. O'Neill Director May 22, 1996
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Donald E. O'Neill
/s/ Charles E. Austin Director May 22, 1996
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Charles E. Austin
/s/ John E. Bagalay, Jr. Director May 22, 1996
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John E. Bagalay, Jr.
/s/ Ronald J. Brenner Director May 22, 1996
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Ronald J. Brenner
/s/ James A. Grigsby Director May 22, 1996
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James A. Grigsby
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