-----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, KLVpwoSRd7fpfjdQdlax+WHgRMk4xPQhfzjA2JqQtzAqxGOr64mh82WQrx+4GZsZ xsmW6iUF1ndXJe8YNrTXoA== 0000950159-01-500389.txt : 20020413 0000950159-01-500389.hdr.sgml : 20020413 ACCESSION NUMBER: 0000950159-01-500389 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20011217 EFFECTIVENESS DATE: 20011217 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: 333-75304 FILM NUMBER: 1815929 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 cytogens-8.txt Registration No. 333-______ As filed with the Securities and Exchange Commission on December 17, 2001 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CYTOGEN CORPORATION ---------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) Delaware ---------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation or Organization) 22-2322400 ---------------------------------------------------------------------- (I.R.S. Employer Identification No.) 600 College Road East CN 5308, Princeton, NJ 08540 ---------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) Cytogen Corporation Performance Bonus Plan with Stock Payment Program, Effective June 19, 2001 ---------------------------------------------------------------------- (Full Title of the Plan) Catherine M. Verna, Esquire Vice President and General Counsel 600 College Road East CN 5308, Princeton, NJ 08540 ---------------------------------------------------------------------- (Name and Address of Agent for Service) (609) 750-8200 ---------------------------------------------------------------------- (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 - --------------------------------- -------------------- ------------------- -------------------- -------------------- Common Stock, $0.01 300,000 Shares(2) $3.26 $978,000 $233.75 par value per share (including associated preferred stock purchase rights) - --------------------------------- -------------------- ------------------- -------------------- -------------------- -------------------- (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.
-2- 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. -3- 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 -4- 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. -5- 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 - -------------------------------------------------------------------------------- 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; -6- (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. -7- 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 ------------------------------------ H. Joseph Reiser, President and Chief Executive Officer -8- 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
-9- EXHIBIT INDEX
Exhibit Number Description Manner of Filing - ------- ----------- ---------------- 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).
-10- EX-4 3 exhibit4.txt EXHIBIT 4.1 CYTOGEN CORPORATION PERFORMANCE BONUS PLAN WITH STOCK PAYMENT PROGRAM Effective June 19, 2001 1. Definitions. (a) Company shall mean Cytogen Corporation, a Delaware corporation and its subsidiaries. (b) Plan shall mean the Company's Performance Bonus Plan with Stock Payment Program. (c) Common Stock shall the Company's common stock, $.01 par value. (d) Board shall mean the Board of Directors of the Company. (e) Board Committee shall mean any committee made up of Non-Employee Directors and designated by the Board to administer the Plan, or if no such committee is constituted, the Compensation Committee of the Board of Directors of the Company. (f) Participant shall mean any person eligible to receive a bonus under the Plan, whether in the form of a cash payment or as a distribution of Common Stock. (g) Management Committee shall mean members of the Company's senior management group, as that is constituted from time to time. (h) Officer shall mean a duly authorized executive officer of the Company as that term is defined in Rule 3b-7 promulgated by the Securities and Exchange Commission under the Exchange Act. (i) CEO shall mean the Company's duly authorized chief executive officer. (j) Plan Year shall mean a calendar year. (k) Non-Employee Director shall mean a duly elected non-employee director as that term is defined in Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act. (l) Securities Act shall mean the Securities Act of 1933, as amended. (m) Exchange Act shall mean the Securities Exchange Act of 1934, as amended. (n) Fair Market Value shall mean, (A) if the Common Stock is traded in a public market, and is listed on a national securities exchange or included in the NASDAQ System, the last reported sale price thereof on the relevant date, (B) if the Common Stock is not so listed or included, the mean between the last reported "bid" and "asked" prices thereof on the relevant date, as reported on NASDAQ, (C) if not so reported, as reported by the National Daily Quotation Bureau, Inc. or as otherwise reported in a customary financial reporting service, as may be applicable and as determined by the Board, and, (D) if not publicly traded, then the value of a share of Common Stock as determined, in good faith, by the Board, taking into account such facts and circumstances as the Board deems appropriate. 2. Purpose. The Company, hereby adopts the Plan for the purpose of providing guidelines for the payment of annual employee bonuses and for permitting the payment of all or a portion of such employee bonuses in the form of a distribution of shares of Common Stock pursuant to the terms set forth herein. 3. Administration of the Plan. The Plan shall, in general, be administered by the Board or by a Board Committee. The Board Committee shall have all authority necessary or appropriate for the proper and orderly implementation and operation of the Plan. (a) Meetings. The Board Committee shall hold meetings at such times and places as it may determine, shall keep minutes of its meetings, and shall adopt, amend and revoke such rules or procedures as it may deem proper. The Board Committee may take action by a vote of a majority of the Board Committee and may take any action by means of a written instrument signed by all of its members, which action shall have the same effect as though it had been taken at a meeting duly called and held. (b) Exculpation. No member of the Board, any Board Committee or the Management Committee shall be personally liable for monetary damages for any action taken or any failure to take any action in connection with the administration of the Plan; except that this exculpation shall not apply to any breach of such member's duty of loyalty to the Company, its affiliates or the Company's shareholders, or to any acts or omissions that are not in good faith or that involve intentional misconduct or a knowing violation of law, acts or omissions that would result in liability under applicable law, or any transaction from which the member derived an improper personal benefit. (c) Indemnification. Service by a member of the Board on the Board Committee shall constitute service as a member of the Board. Each member of the Board Committee shall be entitled, without further act on his or her part, to indemnity from the Company and limitation of liability to the fullest extent permitted provided by applicable law and under the Company's Articles of Incorporation and/or By-laws in connection with or arising out of any action, suit or proceeding with respect to the administration of the Plan in which he or she may be involved by reason of his or her being or having been a member of the Board Committee, whether or not he or she continues to be such member of the Board Committee at the time of the action, suit or proceeding. (d) Interpretation. The Board Committee shall have the power and authority to interpret the Plan and to adopt such rules and regulations for its administration as are not inconsistent with the express terms of the Plan. Any such actions by the Board Committee shall be final, binding and conclusive on all parties in interest. 4. Shares Subject to Plan. The Board Committee may provide for the grant of shares of Common Stock pursuant the terms of the Plan from authorized and unissued Common Stock or from Common Stock held in or hereafter acquired for the treasury of the Company in accordance with Section 8 of the Plan. The maximum number of shares of Common Stock available for grant to Participants under the Plan shall be 300,000, which number may be adjusted by the Board in the event the Company's Common Stock is changed by reason of a reorganization, merger, consolidation, recapitalization, reclassification, stock split, combination or exchange of shares and the like, or dividends payable in shares of Common Stock to reflect on an equitable basis any such change in the Company's Common Stock. 5. Eligibility. (a) Non-Officer Employees. Each Participant who is not an Officer shall, at the sole discretion of the Management Committee, be eligible to receive a bonus pursuant to the terms of the Plan. (b) Officers (other than CEO). Each Officer other then the CEO shall, at the sole discretion of the Board Committee, be eligible to receive a bonus pursuant to the terms of the Plan as recommended to the Board Committee by the Management Committee. (c) CEO. The CEO shall be eligible to receive, at the sole discretion of the Board, a bonus as determined by the Board. 6. Determination of Bonuses Payable Under the Plan. (a) General Discretion to Establish Performance Goals and Target Bonuses. The Management Committee shall have full discretion, consistent with the terms of the Plan, to establish the terms and conditions of the bonus program in effect for each Plan Year, including the performance goals that must be obtained in order for bonuses to be payable under the Plan, and the Target Bonuses for employees payable with respect to a Plan Year subject to approval of the Board with respect to any bonuses payable to Officers of the Company. The Management Committee shall also have full discretion to determine whether the Company's achievement of such goals has been established during a Plan Year, subject to approval of the Board with respect to any bonuses payable to Officers of the Company. (b) Default Target Bonus and Performance Goals. Unless other arrangements are implemented by the Management Committee with respect to a Plan Year, as permitted under Subsection 5(a), Target Bonuses (as calculated pursuant to Section 6(b)(iii)) will be payable to the extent that Company's performance goals and individual performance goals, if any, are attained, as further described herein. (i) The Company performance goals for a Plan Year shall be established by the Management Committee, subject to the approval of the Board with respect to any bonuses payable to Officers of the Company and divided into two categories, one being financial and the other being operational, with each category being equally weighted. If the goals in both categories are fully achieved, Target Bonuses will be payable in full, subject to reduction by reason of a failure to achieve fully, any applicable individual performance goals. If the Company's performance in either category (or both) does not reach 100%, a percentage of the Target Bonuses equal to the average of the Company's achievement in the two categories will be payable, subject to further reduction by reason of a failure to achieve fully, any applicable individual performance goals. If the Company's performance in either category (or both) exceeds 100%, a percentage of the Target Bonuses equal to the average of the Company's achievement in the two categories will be payable, subject to increase or reduction by reason of achievement or failure to fully achieve applicable individual performance goals. (ii) Individual performance goals may be established for individual employees or groups of employees as may be designated by the Management Committee for these purposes. If individual performance goals are not achieved in full, the Target Bonus payable to the individual employee shall be reduced accordingly. By way of example, if a Target Bonus of $1,000 would be payable on full attainment by the Company and the individual employee, attainment of only 80% of the Company goals (determined by averaging the two categories described above) would reduce the amount of the bonus payable to $800. In this situation if the individual attained only 90% of the applicable individual performance goals, the bonus payable to such employee would be $720. (iii) Target Bonuses shall be equal to a dollar amount determined by reference to the base salary of the employee, as set forth in the following table: Employee Level Bonus Target as % of Base Salary ------------------------------------------------------------------- Officer (excluding the CEO*) 25 VP (non-officer) 22 Director 20 Associate/Assistant Director 15 Manager 12 Professional Exempt 10 Non-exempt 5 *The Target Bonus for the CEO will be determined by the Board of Directors. (c) Bonus Eligibility. No employee shall be entitled to receive a bonus payment for a Plan Year unless such employee meets the following requirements: (i) The employee must be actively employed at the time of payment or distribution of the bonus. (ii) The employee must have worked for the Company for a minimum of 90 days/400 hours during the Plan Year and continuously from the end of the Plan Year until the time payment or distribution of the bonus is made. (iii) The Company goals (weighted) and the individual performance goals must each have been at least seventy-five percent (75%) attained for the relevant Plan Year. (iv) Such additional individual or group/classification requirements as may be established by the Bonus Committee from time to time, at its discretion, must be satisfied. (d) Pro-Rata Payment for Partial Years. In the event an employee is eligible for a bonus under the Plan, but was not employed by the Company for the full Plan Year, such employee's bonus payable shall be equal to the amount otherwise determined hereunder, but multiplied by a fraction, the numerator of which is the number of full months such employee was employed during the Plan Year, and the denominator of which is 12. 7. Term of the Plan. The Plan is effective with respect to bonuses attributable to the performance of the Company for the 2001 Plan Year and shall continue in effect for each Plan Year thereafter until terminated by the Company. 8. Payment of Bonuses by Distribution of Cash and Common Stock. Each Participant who is eligible and entitled, under the terms of the Plan, as that may be in effect from time to time, shall receive a portion of his or her bonus payment in the form of a cash payment, and, at the sole discretion of the Board, another portion in the form of a distribution of Common Stock under the terms of this Section 8. Any and all issuances of Common Stock to the CEO and any other Officers pursuant to this Section 8 shall be specifically approved by the Board or Board Committee, as applicable. (a) Non-Officer Employees. Each Participant, other than a Participant who is an Officer, shall receive fifty percent (50%) of the amount determined to be payable as an annual bonus in the form of a cash payment at such time as the Management Committee determines such payment is to be made following the close of the Plan Year to which such bonus relates, which payment generally shall be made during the month of February or within a reasonable period of time thereafter, and shall receive the remaining fifty percent (50%) of the amount determined to be payable as such bonus in the form of a distribution of Common Stock, determined as follows: (i) The dollar value of fifty percent (50%) of such Participant's bonus payment shall be divided by the Fair Market Value of a share of Common Stock as of the last business day of the Plan Year to which such bonus relates. (ii) The resulting number shall be the number of shares of Common Stock distributable to such Participant, which shares will be made available on or about the same time as the cash portion of the bonus is paid or as soon thereafter as is practicable. (iii) Notwithstanding the foregoing, each Participant who is eligible for a bonus in the form of a distribution of Common Stock under the terms of this Section 8(a) shall be, at the discretion of the Company, entitled to elect to receive all or any portion of the bonus payment that would otherwise be payable in cash in the form of a distribution of Common Stock, with the amount of such Common Stock distribution being determined in the manner described above; provided, however, that any such election must be filed with the Bonus Committee in writing prior to the last day of the Plan Year to which such bonus relates, and provided, further, that any such election shall be irrevocable. (b) Officers (other than CEO). Each Officer other than the CEO shall receive a distribution of Common Stock determined in the same manner as described in Section 8(a), above, including an election to receive a greater percentage of his or her bonus in the form of Common Stock rather than in cash. (c) CEO. The CEO shall be entitled to receive all or a portion of his bonus in the form of a distribution of Common Stock at the sole discretion of the Board. (d) Notwithstanding anything to the contrary contained herein: (i) No bonus shall be payable to any person if such person has ceased to be an employee of the Company as of the date such bonus would otherwise be payable, without regard to whether such bonus is payable in cash or in a distribution of Common Stock, except to the extent that the Management Committee, in the case of a non-officer employee, or the Board or Board Committee, in the case of an Officer has determined, in light of any relevant facts and circumstances that it chooses to consider, that it is either necessary or appropriate to make such a payment to a former employee. (ii) No distribution of Common Stock shall be made to any person pursuant to the Plan if such distribution would violate any applicable federal, state or local law or any rules of the exchange on which the Company's equity securities are listed, and the Management Committee or the Board or Board Committee, as applicable, may impose such restrictions and/or limitations on such Common Stock as is distributed pursuant to the Plan as it deems necessary or appropriate in connection with any such laws or rules, or for any other reason. (iii) The Management Committee or the Board or Board Committee may require, as appropriate with respect to any distribution of Common Stock, that the Participant to whom such distribution is made provide to the Company an acknowledgment, in form and substance satisfactory to Company, that (a) such shares of Common Stock are being purchased for investment and not for distribution or resale (other than a distribution or resale which, in the opinion of counsel satisfactory to Company, may be made without violating the registration provisions of the Securities Act or any successor statute, (b) the Participant has been advised and understands that the shares of Common Stock so distributed have not been registered under the Securities Act and are "restricted securities" within the meaning of Rule 144 under the Securities Act and are subject to restrictions on transfer, and that the Company is under no obligation to register any such shares of Common Stock under the Securities Act or to take any action which would make available to the Participant any exemption from such registration, (c) such shares may not be transferred without compliance with all applicable federal and state securities laws, and (d) an appropriate legend referring to the foregoing restrictions on transfer and any other applicable restrictions may be endorsed on the certificates. (d) The Board or Board Committee, as the case may be, shall have the authority, at its sole discretion, to suspend the applicability of those provisions of the Plan providing for payment of bonuses in the form of a distribution of Common Stock from time to time. 9. No Commitment to Retain. The payment of a bonus under the Plan, whether in cash or in the form of a distribution of Common Stock, or any combination thereof, shall not be construed to imply or to constitute evidence of any agreement, express or implied, on the part of the Company or any affiliate to retain the Participant as an employee, or in any other capacity. 10. Withholding of Taxes. (a)In connection with payment of a bonus, whether in cash or in the form of a distribution of Common Stock, or any combination thereof, the Company shall have the right: (i) to require the recipient to remit or otherwise make available to the Company an amount sufficient to satisfy any federal, state and/or local withholding tax requirements prior to any payment or any delivery or transfer of any certificate or certificates for Common Stock; or (ii) take whatever other action the Company deems necessary to protect its interests with respect to tax liabilities. (b) All obligations of the Company under the Plan shall be conditioned on the Participant's compliance, to the Company's satisfaction, with any withholding requirement. 11. Assumption of the Plan. In the event the Company is acquired, whether by merger, stock acquisition or otherwise, or all or substantially all of the assets of the Company are acquired, the entity having control over the Company or the Company's assets shall assume and continue the operation of the Plan. 12. Amendment and Termination of the Plan. The Board may amend the Plan from time to time in such manner as it may deem advisable or terminate the Plan at any time. In addition, the Board or the Board Committee shall have the authority to amend or modify the Plan to the extent necessary or appropriate, as determined at the discretion of the Board Committee, so as to cause acquisitions of shares of Common Stock under the Plan by Officers to qualify for an exemption from potential liability under Section 16(b) of the Exchange Act and the rules and regulations thereunder, including, but not limited to the Rule 16b-3. In the event there is a termination of the Plan pursuant to this Section 12 where such termination is effected in connection with any transaction that constitutes a change in the ownership or effective control of the Company or which is a change in the ownership of a substantial portion of the assets of the Company that would be treated as such a change under the provisions of Internal Revenue Code Section 280G(b)(2)(A)(i), the termination of the Plan shall be treated as resulting in a short Plan Year, ending as of the date of such termination, and bonuses shall be payable on a pro-rated basis, taking into account the extent to which performance goals were attained when viewed on an annualized basis. EX-5 4 ex5.txt EXHIBIT 5 WOLF, BLOCK, SCHORR AND SOLIS-COHEN LLP 1650 Arch Street, 22nd Floor Philadelphia, PA 19103-2097 T: (215) 977-2000 F: (215) 977-2334 www.wolfblock.com December 17, 2001 Cytogen Corporation 600 College Road East CN 5308 Princeton, NJ 08450 RE: Registration Statement on Form S-8 Relating to the Cytogen Corporation Performance Bonus Plan with Stock Payment Program, Effective June 19, 2001 Ladies and Gentlemen: As counsel to Cytogen Corporation, a Delaware corporation (the "Company"), we have assisted in the preparation of the registration statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), relating to 300,000 shares of the Company's Common Stock, $0.01 par value per share (the "Common Stock"), which may be issued under the Cytogen Corporation Performance Bonus Plan with Stock Payment Program, Effective June 19, 2001 (the "Plan"). In this connection, we have examined and considered the originals or copies, certified or otherwise identified to our satisfaction, of the Company's Restated Certificate of Incorporation, as amended, its Bylaws, as amended, the Plan, resolutions of the Company's Board of Directors, and such other certificates, records and documents relating to the Company and the issuance and sale of the Common Stock covered by the Registration Statement and such matters of law as we have deemed appropriate for purposes of rendering this opinion. In all examinations of documents, instruments and other papers, we have assumed the genuineness of all signatures on original and certified copies of documents and the conformity to originals of all documents submitted to us as conformed, photostat or other copies. As to matters of fact which have not been independently established, we have relied upon representations of officers of the Company. The 300,000 shares of Common Stock to which the Registration Statement relates may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including applicable rules and regulations, in effect on the date hereof. We assume no obligation to update this opinion. Based on the foregoing examination and information thus supplied, it is our opinion that the 300,000 shares of Common Stock covered by the Registration Statement and to be offered under the Plan are duly authorized and, when issued and sold by the Company pursuant to the terms of the Plan, will be validly issued, fully paid and nonassessable shares of Common Stock. Our examination of law relevant to the matters covered by this opinion is limited to Delaware law. Accordingly, we express no opinions as to matters governed by the laws of any other state or jurisdiction. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving this opinion, we do not thereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Wolf, Block, Schorr and Solis-Cohen LLP -2- EX-23 5 ex23-1.txt EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTS As independent public accountants, we hereby consent to the incorporation by reference in this form S-8 Registration Statement of our report dated February 1, 2001 included in the Company's Form 10-K for the year ended December 31, 2000 and to all references to this Firm included in this Registration Statement. /s/ ARTHUR ANDERSEN LLP Philadelphia, Pennsylvania December 12, 2001 -----END PRIVACY-ENHANCED MESSAGE-----