-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U32kDySIL8BVZwjum38+Uc07FtPAUGEthJ5bEiHkgk+0RDWc6dEnQTcFrJIPeSj2 mAOmTBtYWi8qL4dWDcyScQ== 0000950109-97-004250.txt : 19970526 0000950109-97-004250.hdr.sgml : 19970526 ACCESSION NUMBER: 0000950109-97-004250 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970523 EFFECTIVENESS DATE: 19970523 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CYTOGEN CORP CENTRAL INDEX KEY: 0000725058 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 222322400 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-27673 FILM NUMBER: 97613279 BUSINESS ADDRESS: STREET 1: 600 COLLEGE RD EAST CN 5308 CITY: PRINCETON STATE: NJ ZIP: 08540 BUSINESS PHONE: 6099878200 MAIL ADDRESS: STREET 1: 600 COLLEGE RD EAST CN 5308 STREET 2: 600 COLLEGE RD EAST CN 5308 CITY: PRINCETON STATE: NJ ZIP: 08540 S-8 1 FORM S-8 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 -----------------
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 - ---------------------------------------------------------------------------------------------------------- Common Stock 500,000 shares $5.1875 $2,593,750 $785.98 ==========================================================================================================
(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. ------------------- 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 -2- 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. -3- 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. -4- 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 -5- 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. -6- 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 -7- 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.
Signature Title Date --------- ----- ---- /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
-8- EXHIBIT INDEX -------------
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
-9- EX-5.1 2 LEGAL OPINION OF DECHERT PRICE & RHOADS 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 EX-23.1 3 CONSENT OF ARTHUR ANDERSEN LLP 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 EX-99.1 4 CYTOGEN CORPORATION EMPLOYEE STOCK PURCHASE PLAN 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. 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 -2- 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; -3- 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. -4- 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. -5- 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 ---------------------------------- 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 ---------------------------- 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. -6- 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 ----------------------------------------- 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 -7- 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 -8- -----END PRIVACY-ENHANCED MESSAGE-----