<PAGE>
As filed with the Securities and Exchange Commission on May 23, 1997
Registration No. 333-
================================================================================
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
EMPLOYEE STOCK PURCHASE 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
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
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
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 500,000 shares $5.1875 $2,593,750 $785.98
==========================================================================================================
</TABLE>
(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 19, 1997.
-------------------
<PAGE>
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, 1996;
(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; and
(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
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<PAGE>
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 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.
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<PAGE>
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.
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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<PAGE>
Item 8. Exhibits
Exhibit 4.1 Restated Certificate of Incorporation, as amended(1)
Exhibit 4.2 By-laws of Cytogen Corporation, as amended(2)
Exhibit 4.3 Specimen of Common Stock Certificate(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 (contained in Exhibit 5.1)
Exhibit 24.1 Power of Attorney (reference is made to page 8 of this
Registration Statement)
Exhibit 99.1 Cytogen Corporation Employee Stock Purchase Plan
_____________
(1) Filed as an exhibit to Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996 (Commission File No. 0-14879) and incorporated
herein by reference.
(2) Filed as an exhibit to Form S-4 Registration Statement (No 33-88612)
and incorporated herein by reference.
(3) 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
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<PAGE>
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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<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-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
21st day of May, 1997.
CYTOGEN CORPORATION
By: /s/ Thomas J. McKearn
----------------------------------------
Thomas J. McKearn
Chairman of the Board, President and
Chief Executive Officer
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<PAGE>
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/ Thomas J. McKearn Chairman of the Board, President, May 21, 1997
- ------------------------- Chief Executive Officer and Director
Thomas J. McKearn (Principal Executive Officer)
/s/ T. Jerome Madison Vice President, Chief Financial May 21, 1997
- ------------------------- Officer and Secretary (Principal
T. Jerome Madison Financial and Accounting Officer)
/s/ William C. Mills III Director May 21, 1997
- -------------------------
William C. Mills III
/s/ Robert F. Hendrickson Director May 21, 1997
- -------------------------
Robert F. Hendrickson
/s/ Donald E. O'Neill Director May 21, 1997
- -------------------------
Donald E. O'Neill
/s/ Charles E. Austin Director May 21, 1997
- ------------------------
Charles E. Austin
Director May 21, 1997
- ------------------------
John E. Bagalay, Jr.
/s/ Ronald J. Brenner Director May 21, 1997
- ------------------------
Ronald J. Brenner
/s/ James A. Grigsby Director May 21, 1997
- ------------------------
James A. Grigsby
</TABLE>
-8-
<PAGE>
EXHIBIT INDEX
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<TABLE>
<CAPTION>
<S> <C> <C>
Exhibit 5.1 Legal Opinion of Dechert Price & Rhoads Page 10
Exhibit 23.1 Consent of Arthur Andersen LLP Page 11
Exhibit 23.2 Consent of Dechert Price & Rhoads (Contained in Exhibit 5.1)
Exhibit 24.1 Power of Attorney (See Page 8)
Exhibit 99.1 Cytogen Corporation Employee Stock Purchase Plan Page 12
</TABLE>
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<PAGE>
EXHIBIT 5.1
May 23, 1997
Cytogen Corporation
600 College Road East
CN 5308
Princeton, NJ 08540-5308
Gentlemen:
We refer to the registration of 500,000 shares (the "Shares") of
Common Stock, $.01 par value, of Cytogen Corporation (the "Company") to be
offered pursuant to the Cytogen Corporation Employee Stock Purchase 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 applicable provisions of 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
<PAGE>
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
January 24, 1997 included in Cytogen Corporation's Form 10-K for the year
ended December 31, 1996, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, PA
May 21, 1997
<PAGE>
CYTOGEN CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
The CYTOGEN Corporation Employee Stock Purchase Plan (the "Plan") is
intended to provide the eligible employees of CYTOGEN Corporation (the
"Company") and its qualifying subsidiaries a convenient means of purchasing
shares of the Company's common stock, par value $ .01 per share (the "Stock").
The Plan is intended to qualify as an "employee stock purchase plan" under
section 423 of the Internal Revenue Code of 1986, as amended (the "Code"), and
shall be administered, interpreted and construed in a manner consistent with the
requirements of that section of the Code.
ARTICLE I
DEFINITIONS
1.1 "Account" means the bookkeeping account established on behalf of each
Participant by the Administrator to record payroll deduction contributions made
by such Participant and shares of Stock purchased on his behalf.
1.2 "Administrator" means the individual or committee appointed pursuant to
Article VIII to administer the Plan.
1.3 "Board" means the Board of Directors of the Company.
1.4 "Business Day" means each day on which the Exchange (as defined in
Section 4.3) is open for business.
1.5 "Compensation" means all regular salary, wages or earnings but
excluding overtime, commissions, bonuses, amounts realized from the exercise of
a qualified or non-qualified stock option and other special incentive payments,
fees or allowances.
1.6 "Employee" means any person who is employed by the Company except an
employee whose customary employment is:
1.6.1 less than 20 hours per week; or
1.6.2 less than 5 months a year.
For the purpose of determining whether an individual is an Employee, the
definition of Company shall also include the Company's subsidiaries, if any, as
defined under Code section 424(f).
1.7 "Effective Date" means July 1, 1997, subject to the provisions of
Section 9.8 of the Plan.
1.8 "Entry Date" means January 1 and July 1 of each Plan Year.
<PAGE>
1.9 "Offering Commencement Date" means the first Business Day of each
Offering Period.
1.10 "Offering Period" means each three month period.
1.11 "Offering Termination Date" means the last Business Day of each
Offering Period.
1.12 "Participant" means an Employee who has met the eligibility
requirements of Article II and who has elected to participate pursuant to an
election under Section 3.1.
1.13 "Plan Year" means the 12-month period ending December 31.
1.14 "Shares" means shares of Stock that have been allocated to a
Participant's Account.
1.15 "Year of Service" means a consecutive 12-month period during which an
individual was an Employee.
ARTICLE II
ELIGIBILITY
2.1 Eligibility. Except as provided in Section 3.6, an Employee who has
-----------
completed one Year of Service prior to the Effective Date and who continues to
be employed by the Company shall be eligible to participate in the Plan as of
the Effective Date. All other Employees, except as provided in Section 3.6,
shall be eligible to participate in the Plan as of the Entry Date coinciding
with or next following the completion of one Year of Service.
2.2 Eligibility Restrictions. A Participant who elects to terminate
------------------------
participation in the Plan in accordance with Section 3.5 shall be prohibited
from participating in the Plan until the Entry Date next following the date of
such termination.
ARTICLE III
PARTICIPATION
3.1 Commencement of Participation. An eligible Employee may become a
-----------------------------
Participant in the Plan on any Entry Date by completing an enrollment and
payroll deduction form and delivering it to the Company in accordance with
procedures established by the Administrator.
3.2 Payroll Deduction. At the time a Participant files his enrollment and
-----------------
payroll deduction form, he shall elect to have after-tax deductions made from
his Compensation by a whole percentage that is not less than 1% nor more than
10% of his Compensation.
3.3 Participants' Accounts. All payroll deductions made from a
----------------------
Participant's Compensation shall be credited to his Account and used to purchase
shares of Stock in
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<PAGE>
accordance with Article V. Contributions credited to a
Participant's Account shall not accrue interest or earnings during the period
---
prior to being used to purchase shares of Stock in accordance with Article V.
3.4 Changes in Payroll Deductions. The percentage designated by a
-----------------------------
Participant as his rate of contribution under Section 3.2 shall automatically
apply to increases and decreases in his Compensation. Except as provided in
Section 3.5, a Participant may elect to change the rate of his contributions to
any other permissible rate effective as of the first day of the first payroll
period of any Offering Period provided the Participant files written notice with
the Administrator of an election to change his contribution rate at least ten
(10) Business Days before the effective date of the election.
3.5 Suspension and Resumption of Payroll Deductions. A Participant may
-----------------------------------------------
terminate contributions under the Plan as of the first day of any payroll period
by filing written notice thereof with the Administrator at least ten (10)
Business Days before the effective date of the termination. A Participant who
has terminated his participation in the Plan in accordance with the preceding
provisions, shall be prohibited from resuming contributions under the Plan until
the following Entry Date. A Participant whose contributions have been terminated
in accordance with the preceding provisions, may resume contributions under the
Plan in accordance with Section 2.2.
3.6 Restrictions on Participation. Notwithstanding any provisions of the
-----------------------------
Plan to the contrary, no Employee shall be granted an option to participate in
the Plan under the following conditions:
3.6.1 No Employee shall be granted an option if, immediately after the
grant, such Employee would own stock, and/or hold outstanding
options to purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of stock of the
Company (for purposes of this paragraph, the rules of (S)424(d)
of the Code shall apply in determining stock ownership of any
Employee); or
3.6.2 No Employee shall be granted an option which permits his rights
to purchase Stock under the Plan and all other employee stock
purchase plans (as described in section 423 of the Code) of the
Company to accrue at a rate which exceeds $25,000 of fair market
value of such Stock (determined at the time such option is
granted) for each calendar year in which such option is
outstanding at any time. For purposes of this Section 3.6.2:
3.6.2.1 the right to purchase stock under an option accrues when
the option (or any portion thereof) first becomes
exercisable during the calendar year;
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<PAGE>
3.6.2.2 the right to purchase stock under an option accrues at
the rate provided in the option, but in no case may such
rate exceed $25,000 of fair market value of such stock
(determined at the time such option is granted) for any
one calendar year; and
3.6.2.3 a right to purchase stock which has accrued under one
option granted pursuant a plan may not be carried over to
any other option.
ARTICLE IV
OFFERINGS
4.1 Quarterly Offerings. The Plan shall be implemented through quarterly
-------------------
offerings of the Company's Stock. Each Offering Period shall begin on the
Offering Commencement Date and shall end on the Offering Termination Date.
4.2 Purchase Price. The "Purchase Price" per share of Stock with respect
--------------
to each Offering Period shall be the lesser of:
4.2.1 Eighty-five (85) percent of the official closing price of the
Stock on the Offering Termination Date on the National
Association of Securities Dealers Automated Quotations (or on
such other national securities exchange upon which the Stock may
then be listed, hereinafter referred to as the "Exchange") or if
no sale of Stock occurred on such date, the official closing
price on the preceding Business Day; or
4.2.2 Eighty-five (85) percent of the official closing price of the
Stock on the Offering Commencement Date on the Exchange (or if
no sale of Stock occurred on such date, the closing price on the
preceding business day).
4.3 Maximum Offering. The maximum number of shares of Stock which shall be
----------------
issued under the Plan, subject to adjustment upon changes in capitalization of
the Company as provided in Section 9.3, shall be 500,000 shares. If the total
number of shares which would be purchased during any Offering Period exceeds the
maximum number of available shares, the Administrator shall make a pro rata
allocation of the available shares in a manner that it determines to be
equitable and the balance of payroll deductions credited to the Accounts of
Participants shall be returned to such Participants as soon as administratively
practicable.
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<PAGE>
ARTICLE V
PURCHASE OF STOCK
5.1 Automatic Exercise. On each Offering Termination Date, each
------------------
Participant shall automatically and without any act on his part be deemed to
have purchased Stock to the full extent of the payroll deductions credited to
his Account during the Offering Period ending on such Offering Termination Date.
5.2 Fractional Shares. Fractional shares of Stock may not be purchased
-----------------
under the Plan.
5.3 Acquisition of Stock. The Company may acquire Stock for use under the
--------------------
Plan from authorized but unissued shares, treasury shares, in the open market or
in privately negotiated transactions.
5.4 Accounting for Purchased Stock. All shares of Stock purchased pursuant
------------------------------
to Section 5.1 shall be allocated as Shares to the appropriate Participant's
Account as of the Offering Termination Date on which such shares are purchased.
ARTICLE VI
ACCOUNTING
6.1 General. The Administrator shall establish procedures to account for
-------
payroll deductions made by a Participant, the number of Shares of Stock
purchased on a Participant's behalf and the number of Shares allocated to a
Participant's Account.
6.2 Registration of Stock. Shares of Stock allocated to a Participant's
---------------------
Account shall be registered in the name of the Company or its nominee for the
benefit of the Participant on whose behalf such shares were purchased.
6.3 Accounting for Distributions. Shares of Stock distributed or sold from
----------------------------
a Participant's Account shall be debited from his Account on a first-in first-
out basis.
6.4 Account Statements. Each Participant shall receive at least semi-
------------------
annual statements of all payroll deductions and shares of Stock allocated to his
Account together with all other transactions affecting his Account.
ARTICLE VII
WITHDRAWALS AND DISTRIBUTIONS
7.1 Withdrawal of Shares. A Participant may elect to withdraw any number
--------------------
of Shares allocated to his Account by providing notification to the Company in
accordance with procedures established by the Administrator. As soon as
administratively practicable following notification of a Participant's election
to withdraw Shares, the Administrator shall cause a certificate representing the
number of Shares to be withdrawn to be delivered to the Participant.
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<PAGE>
7.2 Distribution Upon Termination. As soon as administratively practicable
-----------------------------
after a Participant's termination of employment with the Company or a
participating subsidiary for any reason, a certificate representing all of such
Participant's Shares shall be distributed to him (or his executor, in the event
of his death).
7.3 Distribution of Payroll Deductions. In the event a Participant
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terminates his employment with the Company or a participating subsidiary or his
participation in the Plan is terminated pursuant to Section 3.5, any payroll
deductions allocated to his Account and not yet applied to purchase Stock in
accordance with Section 5.1 shall be distributed to him in a cash lump sum as
soon as administratively practicable thereafter.
ARTICLE VIII
ADMINISTRATION
8.1 Appointment of Administrator. The Board shall appoint an individual or
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committee comprised of so many members as the Board shall determine to
administer the Plan. The Board may from time to time, if the plan is
administered by a committee, appoint members to the committee in substitution
for or in addition to members previously appointed and may fill vacancies,
however caused, in the committee.
8.2 Authority of Administrator. The Administrator shall have the exclusive
--------------------------
power and authority to administer the Plan, including without limitation the
right and power to interpret the provisions of the Plan and make all
determinations deemed necessary or advisable for the administration of the Plan.
All such actions, interpretations and determinations which are done or made by
the Administrator in good faith shall be final, conclusive and binding on the
Company, the Participants and all other parties and shall not subject the
Administrator to any liability.
8.3 Administrator Procedures. The Administrator shall hold its meetings at
------------------------
such times and places as it shall deem advisable and may hold telephone
meetings. In the event that the Administrator is a committee, a majority of its
members shall constitute a quorum and all determinations shall be made by a
majority of its members. Any decision or determination reduced to writing and
signed by the Administrator shall be as fully effective as if it had been made
by a majority vote at a meeting duly called and held. The Administrator may
appoint a secretary and shall make such rules and regulations for the conduct of
its business as it shall deem advisable.
8.4 Expenses. The Company will pay all expenses incident to the operation
--------
of the Plan, including the costs of recordkeeping, accounting fees, legal fees
and the costs of delivery of stock certificates to Participants.
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<PAGE>
ARTICLE IX
MISCELLANEOUS
9.1 Transferability. Neither payroll deductions credited to a
---------------
Participant's Account nor any rights with regard to the purchase of Stock under
the Plan may be assigned, transferred, pledged or otherwise disposed of in any
way by the Participant other than by will or the laws of descent and
distribution.
9.2 Status as Owner. Each Participant shall be deemed to legally own all
---------------
shares of Stock allocated to his Account and shall be entitled to exercise all
rights associated with ownership of the shares, including, without limitation,
the right to vote such shares in all matters for which Stock is entitled to
vote, receive dividends, if any, and tender such shares in response to a tender
offer.
9.3 Adjustment Upon Changes in Capitalization. In the event of a
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reorganization, recapitalization, stock split, spin-off, split-off, split-up,
stock dividend, combination of shares, merger, consolidation or any other change
in the corporate structure of the Company, or a sale by the Company of all or
part of its assets, the Board may make appropriate adjustments in the number and
kind of shares which are subject to purchase under the Plan and in the exercise
price applicable to outstanding options.
9.4 Amendment and Termination. The Board shall have complete power and
-------------------------
authority to terminate or amend the Plan (including without limitation the power
and authority to make any amendment that may be deemed to affect the interests
of any Participant adversely); provided, however, that the Board shall not,
without the approval of the shareholders of the Company (i) increase the maximum
number of shares which may be offered under the Plan (except pursuant to Section
9.3); (ii) modify the requirements as to eligibility for participation in the
Plan; or (iii) in any other way cause the Plan to fail the requirements of
section 423 of the Code.
The Plan and all rights of Employees hereunder shall terminate: (i) at
any time, at the discretion of the Board, in which case any cash balance in
Participants' Accounts shall be refunded to such Participants as soon as
administratively possible; or (ii) on the Offering Termination Date on which
Participants become entitled to purchase a number of shares of Stock that
exceeds the maximum number of shares available under the Plan.
9.5 No Employment Rights. The Plan does not, directly or indirectly,
--------------------
create in any Employee any right with respect to continuation of employment by
the Company and it shall not be deemed to interfere in any way with the
Company's right to terminate, or otherwise modify, an Employee's terms of
employment at any time.
9.6 Withholding. To the extent any payments or distributions under this
-----------
Plan are subject to Federal, state or local taxes, the Company is authorized to
withhold all applicable taxes. The Company may satisfy its withholding
obligation by (i) withholding shares of Stock allocated to a
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<PAGE>
Participant's Account, (ii) deducting cash from a Participant's Account, or
(iii) deducting cash from a Participant's other compensation. A Participant's
election to participate in the Plan authorizes the Company to take any of the
actions described in the preceding sentence.
9.7 Use of Funds. All payroll deductions held by the Company under this
------------
Plan may be used by the Company for any corporate purpose and the Company shall
not be obligated to hold such payroll deductions in trust or otherwise segregate
such amounts.
9.8 Shareholder Approval. Notwithstanding the provision of Section 1.7 of
--------------------
the Plan, the Plan shall not take effect until approved by the shareholders of
the Company.
9.9 Choice of Law. Except to the extent superseded by Federal law, the
-------------
laws of the State of New Jersey will govern all matters relating to the Plan.
* * * *
To record the adoption of the Plan, CYTOGEN Corporation has caused its
authorized officers to affix its Corporate name and seal this 21st day of May,
1997.
[CORPORATE SEAL] CYTOGEN Corporation
Attest: /s/ T. Jerome Madison By: /s/ Thomas J. McKearn
------------------------ ---------------------------------
T. Jerome Madison, Thomas J. McKearn,
Secretary President
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