Registration No. 333-______
As filed with the Securities and Exchange Commission on December 17, 2001
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CYTOGEN CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
22-2322400
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(I.R.S. Employer Identification No.)
600 College Road East CN 5308, Princeton, NJ 08540
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(Address of Principal Executive Offices) (Zip Code)
Cytogen Corporation Performance Bonus Plan
with Stock Payment Program, Effective June 19, 2001
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(Full Title of the Plan)
Catherine M. Verna, Esquire
Vice President and General Counsel
600 College Road East CN 5308, Princeton, NJ 08540
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(Name and Address of Agent for Service)
(609) 750-8200
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(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
David Gitlin, Esquire
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street - 22nd Floor
Philadelphia, PA 19103
(215) 977-2000
CALCULATION OF REGISTRATION FEE
--------------------------------- -------------------- ------------------- -------------------- --------------------
Proposed
Proposed Maximum Maximum
Offering Price Aggregate Offering Amount of
Title of Securities to be Amount to be per Share (1) Price(1) Registration Fee
Registered Registered
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Common Stock, $0.01 300,000 Shares(2) $3.26 $978,000 $233.75
par value per share
(including associated
preferred stock
purchase rights)
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(1) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of
1933 solely for the purpose of calculating the registration fee, based
on the average of the high and low prices of Cytogen Corporation's
common stock on the Nasdaq National Market on December 10, 2001.
(2) Pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers such additional shares and
associated preferred stock purchase rights as may hereinafter be
offered or issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions effected without the receipt of
consideration.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I of Form S-8 shall be included in
documents to be sent or given to participants in the Cytogen Corporation
Performance Bonus Plan with Stock Payment Program, Effective June 19, 2001
pursuant to Rule 428(b)(1)(i) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Securities and Exchange Commission (the "SEC") allows us to
"incorporate by reference" the information we file with the SEC, which means
that we can disclose important information to you by referring to those
documents. The information incorporated by reference is an important part of
this registration statement, and information that we later file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filing made by us with the
SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), until the filing of a post-effective amendment
to this registration statement which indicates that all securities registered
have been sold or which deregisters all securities remaining unsold:
o our Annual Report on Form 10-K for the year ended December 31, 2000;
o our Quarterly Reports on Form 10-Q for the periods ended March 31,
2001, June 30, 2001 and September 30, 2001;
o our Current Reports on Form 8-K filed with the SEC on February 6, 2001
and June 19, 2001;
o all other reports filed by us under Section 13(a) or 15(d) of the
Exchange Act since December 31, 2000;
o the description of our common stock, $0.01 par value, contained in our
registration statement on Form 8-A, filed with the SEC under Section
12(g) of the Exchange Act on August 8, 1986, and any subsequent
amendments or reports filed for the purpose of updating such
description; and
o the description of our preferred stock purchase rights contained in
our registration statement on Form 8-A, filed with the SEC under
Section 12(g) of the Exchange Act on June 24, 1998, and any subsequent
amendments or reports filed for the purpose of updating that
description.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law ("DGCL")
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the corporation, by
reason of the fact that the person 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, partnership,
joint venture, trust or other enterprise, against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with the action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person 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, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which the person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which the action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, the person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145 further provides that:
o to the extent a present or former director or officer of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in the defense of any
claim, issue or matter therein, the person shall be indemnified
against expenses, including attorneys' fees, actually and
reasonably incurred by the person in connection therewith;
o a Delaware corporation may (a) pay expenses, including attorneys'
fees, incurred by an officer or director in defending any civil,
criminal, administrative or investigative action, suit or
proceeding, in advance of the final disposition of the
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action, suit or proceeding, upon receipt of an undertaking by or
on behalf of the officer or director to repay such amount if it
is ultimately determined that the officer or director is not
entitled to be indemnified by the corporation and (b) pay such
expenses incurred by former directors and officers or other
employees and agents upon such terms and conditions as the
corporation deems appropriate;
o the indemnification and advancement of expenses provided by or
granted pursuant to Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled
under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise;
o a Delaware corporation may purchase and maintain insurance on
behalf of a director or officer of the corporation against any
liability asserted against him or her or incurred by him or her
in any such capacity or arising out of his or her status as such
whether or not the corporation would have the power to indemnify
him or her against such liabilities under Section 145; and
o the indemnification and advancement of expenses provided by or
granted pursuant to Section 145 shall, unless otherwise provided
when authorized or ratified, 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.
Section 102(b)(7) of the DGCL provides that a corporation in its
original certificate of incorporation or an amendment thereto validly approved
by stockholders may eliminate or limit personal liability of a director for
monetary damages for breach of fiduciary duty as a director. However, no such
provision may eliminate or limit the liability of a director for:
o any breach of the director's duty of loyalty to the corporation
or its stockholders;
o acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o paying a dividend or approving a stock repurchase which was
illegal; or
o any transaction from which the director derived an improper
personal benefit.
A provision of this type has no effect on the availability of equitable
remedies, such as injunction or rescission, for breach of fiduciary duty.
Cytogen's restated certificate of incorporation contains such a provision.
Cytogen's certificate of incorporation and bylaws provide that Cytogen shall
indemnify officers and directors and, to the extent permitted by the board of
directors, employees and agents of Cytogen, to the full extent permitted by and
in the manner permissible under the laws of the State of Delaware. The bylaws
permit the board of directors to authorize Cytogen to purchase and maintain
insurance against any director, officer, employee or agent of Cytogen arising
out of his or her capacity as such.
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In addition, Section 3(c) of the Cytogen Corporation Performance Bonus
Plan with Stock Payment Program provides that service by a member of the board
of directors on the administrative committee for the plan constitutes service on
the board of directors. Section 3(c) of the plan further provides that each
committee member is entitled to indemnity from Cytogen and limitation of
liability to the fullest extent permitted or provided by applicable law and by
Cytogen's certificate of incorporation and/or bylaws in connection with or
arising out of any action, suit or proceeding with respect to administration of
the plan whether or not he or she continues to be a member of the committee at
the time of the action, suit or proceeding.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No. Description of Exhibit
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4.1 Cytogen Corporation Performance Bonus Plan with Stock Payment
Program, Effective June 19, 2001.
4.2 Restated Certificate of Incorporation of Cytogen Corporation,
as amended. (Incorporated by reference to Exhibit 3.1 to
Cytogen Corporation's Form 10-Q Quarterly Report for the
quarter ended June 30, 2000 and Exhibit 3 to Cytogen
Corporation's Form 10-Q Quarterly Report for the quarter ended
June 30, 1996.)
4.3 Bylaws of Cytogen Corporation, as amended. (Incorporated by
reference to Exhibit 3.1 to Cytogen Corporation's Form 10-Q
Quarterly Report for the quarter ended September 30, 2001.)
5 Opinion and Consent of Wolf, Block, Schorr and Solis-Cohen
LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen LLP (contained
in the opinion filed as Exhibit 5).
24 Power of Attorney (contained on the signature page of this
registration statement).
Item 9. 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;
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(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. 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 end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC 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 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 information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference 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.
(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 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 the 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.
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 SEC 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.
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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 city of Princeton, state of New Jersey, on this 17th day of
December, 2001.
CYTOGEN CORPORATION
By: /s/ H. Joseph Reiser
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H. Joseph Reiser,
President and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints H. Joseph Reiser and Lawrence R. Hoffman
and each of them, the undersigned's true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, for the undersigned and in
the undersigned's name, place and stead, in any and all capacities, to sign any
and all amendments to this registration statement, including, without
limitation, post-effective amendments to this registration statement, and to
file the same with all exhibits thereto, and all documents in connection
therewith, with the SEC, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully 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 date indicated.
Signature Title Date
/s/ H. Joseph Reiser
----------------------------- President and Chief Executive Officer and December 17, 2001
H. Joseph Reiser Director (Principal Executive Officer)
/s/ Lawrence R. Hoffman
----------------------------- Vice President and Chief Financial Officer December 17, 2001
Lawrence R. Hoffman (Principal Financial and Accounting Officer)
/s/ John E. Bagalay
----------------------------- Director December 17, 2001
John E. Bagalay
/s/ Stephen K. Carter
----------------------------- Director December 17, 2001
Stephen K. Carter
/s/ James A. Grigsby
----------------------------- Chairman of the Board and December 17, 2001
James A. Grigsby Director
/s/ Robert F. Hendrickson
----------------------------- Director December 17, 2001
Robert F. Hendrickson
/s/ Kevin G. Lokay
----------------------------- Director December 17, 2001
Kevin G. Lokay
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EXHIBIT INDEX
Exhibit
Number Description Manner of Filing
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4.1 Cytogen Corporation Performance Bonus Plan with Stock Filed herewith electronically.
Payment Program, Effective June 19, 2001.
4.2 Restated Certificate of Incorporation of Cytogen Incorporated by reference.
Corporation, as amended.
4.3 Bylaws of Cytogen Corporation, as amended. Incorporated by reference.
5 Opinion and Consent of Wolf, Block, Schorr and Filed herewith electronically.
Solis-Cohen LLP.
23.1 Consent of Arthur Andersen LLP. Filed herewith electronically.
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen LLP Filed herewith electronically.
(contained in Exhibit 5).
24 Power of Attorney (contained on the signature page Filed herewith electronically.
of this registration statement).
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