As filed with the Securities and Exchange Commission on April 10, 1998
Registration No. 333-43809
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYTOGEN CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-2322400
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
600 College Road East
Princeton, New Jersey 08540
(609) 987-8200
(Address, Including ZIP Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
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DONALD F. CRANE, JR., ESQ.
VICE PRESIDENT
GENERAL COUNSEL AND
CORPORATE SECRETARY
CYTOGEN CORPORATION
600 College Road East
Princeton, New Jersey 08540
(609) 987-8200
(Name, Address, Including ZIP Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copy to:
FREDERICK W. KANNER, ESQ.
DEWEY BALLANTINE LLP
1301 Avenue of the Americas
New York, New York 10019-6092
(212) 259-8000
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with this offering are as follows:
Amount
to be Paid
SEC registration fee $ 2,003
Nasdaq registration fee 17,500
Legal fees and expenses (including
Blue Sky fees and expenses) 25,000
Accounting fees and expenses 2,000
Miscellaneous 3,616
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Total $50,119
Item 15. Indemnification of Directors and Officers
The Delaware General Corporation Law (the "DGCL") provides for
indemnification of directors, officers, employees and agents, subject to
certain limitations (Delaware Code, Title 8 Section 145). Article VII of
the Company's By-laws provides that expenses incurred by an officer or
director of the Company in defending a civil or criminal action, suit or
proceeding shall be paid by the Company in advance of a final disposition
of the action, suit or proceeding upon receipt by the Company of an
undertaking by the officer or director that he or she will repay such
expenses if it is ultimately determined that he or she is not entitled to
indemnification under the DGCL.
As permitted by Section 102 of the DGCL, the Company's Certificate of
Incorporation contains provisions eliminating a director's personal
liability for monetary damages to the Company and its stockholders arising
from a breach of a director's fiduciary duty except for liability under
Section 174 of the DGCL or liability for any breach of the director's duty
of loyalty to the Company or its stockholders, for acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law or for any transaction by which the director derived an
improper personal benefit. The Company has also entered into
indemnification agreements with its directors and officers providing for
indemnification and advancements of expenses to the fullest extent
permitted under Delaware law.
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<PAGE>
Item 16. Exhibits and Financial Statement Schedules
No.
- ---
4.1 Certificate of Designation of 6% Convertible Preferred Stock,
Series B (1)
5.1 Opinion of Dewey Ballantine LLP.
10.1 Convertible Preferred Stock Purchase Agreement by and between Cytogen
Corporation and Southbrook International Investments, Ltd., Westover
Investments, L.P., Montrose Investments, L.P., Heracles Fund, Themis
Partners, L.P., and Brown Simpson Strategic Growth Fund, Ltd. (1)
10.2 Registration Rights Agreement by and between Cytogen Corporation and
Southbrook International Investments, Ltd., Westover Investments,
L.P., Montrose Investments, L.P., Heracles Fund, Themis Partners,
L.P., and Brown Simpson Strategic Growth Fund, Ltd. (1)
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Dewey Ballantine LLP (included in Exhibit 5.1)
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(1) Incorporated by reference to the Company's current report on Form 8-K
filed on December 22, 1997.
Item 17. Undertakings
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:
(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 the 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 the registration statement;
(iii) 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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8,
and the information required to be included in the post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
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<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(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.
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 that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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 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
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.
The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to
be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the pospectus to provide such
interim financial information.
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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-3 and has duly caused this
Amendment No. 4 to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Princeton, State of
New Jersey, on April 10, 1998.
CYTOGEN CORPORATION
By: /s/ John E. Bagalay, Jr.
Name: John E. Bagalay, Jr.
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 4 to Registration Statement has been signed below by the
following persons on behalf of the registrant and in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ * Chairman of the Board April 10, 1998
- ------------------------
William C. Mills III
/s/ John E. Bagalay, Jr. President and Chief Executive Officer, April 10, 1998
- ------------------------ Chief Financial Officer and Director
John E. Bagalay, Jr.
/s/ Jane M. Maida Chief Accounting Officer April 10, 1998
- ------------------------
Jane M. Maida
/s/ * Director April 10, 1998
- ------------------------
Charles E. Austin
/s/ * Director April 10, 1998
- ------------------------
Ronald J. Brenner
/s/ * Director April 10, 1998
- ------------------------
James A. Grigsby
/s/ * Director April 10, 1998
- ------------------------
Robert F. Hendrickson
/s/ * Director April 10, 1998
- ------------------------
Thomas J. McKearn
/s/ * Director April 10,1998
- ------------------------
Donald E. O'Neill
</TABLE>
28
<PAGE>
* /s/ Donald F. Crane, Jr.
- ---------------------------
Attorney-in-fact
29
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page #
- ------ ----------- ------
5.1 Opinion of Dewey Ballantine LLP 31
23.1 Consent of Arthur Andersen LLP 33
23.2 Consent of Dewey Ballantine LLP (included in Exhibit 5.1) 31
24.1 Power of Attorney (included on the signature page hereto) 28
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30
Exhibit 5.1
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April 10, 1998
Cytogen Corporation
600 College Road East
Princeton, New Jersey 08540
Ladies and Gentlemen:
We have acted as counsel to Cytogen Corporation, a
Delaware corporation (the "Company"), in connection with the
preparation and filing by the Company of a Registration
Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), for the
registration of 6,250,000 shares of common stock, $.01 par
value per share (the "Common Stock"), of the Company which may
be issued upon the conversion of the Company's 6% Convertible
Preferred Stock, Series B (the "Series B Preferred Stock"),
plus such additional indeterminate number of shares of Common
Stock as may become issuable either as a result of the
anti-dilution provisions of the Certificate of Designation
of the Series B Preferred Stock (the "Certificate
of Designation")pursuant to which the Common Stock will
be issued, or by reason of a reduction in the conversion price
of the Series B Preferred Stock in accordance with the provisions
of the Certificate of Designation.
We have examined and are familiar with originals or
copies, certified or otherwise identified to our satisfaction,
of such documents, corporate records, certificates of public
officials and officers of the Company and such other
instruments as we have deemed necessary or appropriate as a
basis for the opinions expressed below, including the
Registration Statement, the Restated Certificate of
Incorporation of the Company and the By-laws of the Company.
Based on the foregoing, we are of the opinion that
the Common Stock issuable upon conversion of the Series B
Preferred Stock (including those shares of Series B Preferred
Stock issued as dividends, if any) has been duly authorized and
reserved for issuance and, when duly issued and delivered upon
conversion of the Series B Preferred Stock in accordance with
the terms of the Convertible Preferred Stock Purchase Agreement
dated December 9, 1997 and the Certificate of Designation, will
be validly issued, fully paid and nonassessable.
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<PAGE>
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 come within the
category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Securities and
Exchange Commission thereunder.
We express no opinion as to the laws of any
jurisdiction other than the laws of the State of New York, the
general corporate laws of the State of Delaware and the federal
law of the United States of America. The foregoing opinion is
rendered as of the date hereof, and we assume no obligation to
update such opinion to reflect any facts or circumstances which
may hereafter come to our attention or any changes in the law
which may hereafter occur.
Very truly yours,
/s/ DEWEY BALLANTINE LLP
DEWEY BALLANTINE LLP
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EXHIBIT 23.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-3 Registration
Statement of our report dated March 31, 1998 included in
CYTOGEN Corporation's Form 10-K/A for the year ended December 31,
1997, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, PA
April 9, 1998
33
