UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
________________________________________
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported): April 9,
2008
CYTOGEN
CORPORATION
________________________________________
(Exact
Name of Registrant as Specified in Charter)
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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650
College Road East, Suite 3100, Princeton, NJ
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (609)
750-8200
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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On March 10, 2008, Cytogen Corporation
(the “Company”) entered into an Agreement and Plan of Merger (“Merger
Agreement”) with EUSA Pharma, Inc., a Delaware corporation (“EUSA”), and EUSA
Pharma (USA), Inc., a Delaware corporation and wholly-owned subsidiary of
EUSA. In addition to the parties’ entrance into the Merger Agreement,
the Company entered into a sublicense agreement for the European and Asian
rights to the Company’s CAPHASOL® product with EUSA Pharma (Europe) Limited, an
affiliate of EUSA, dated as of March 10, 2008 (the “Sublicense
Agreement”). Pursuant to the Product License and Assignment Agreement
among the Company, InPharma AS and InPharma, Inc. (collectively, “InPharma”),
dated as of October 11, 2006, as amended August 30, 2007 and February 14, 2008
(the “License Agreement”), the Company was granted the option to sublicense the
European and Asian rights to CAPHASOL. In order to exercise this
option, the Company is required to pay InPharma an upfront payment of $5 million
as well as three additional one-time payments of $5 million due on the later of
(i) each of the first, second and third anniversaries of the exercise date of
the option and (ii) April 1 in the calendar year in which each such anniversary
occurs; provided however, such additional one-time payments are subject to
reduction in the event there is a launch of a generic CAPHASOL or CalPhos Mouth
Rinse during such three-year period. Under the terms of the
Sublicense Agreement, which became effective on March 17, 2008, the date that
the Company filed its preliminary Proxy Statement concerning the Merger
Agreement with the Securities and Exchange Commission, EUSA is required pay the
Company a one-time payment of $10 million, $5 million of which will be used by
the Company to exercise its option to the European and Asian rights to CAPHASOL
and $5 million of which will be used for general working capital of the
Company.
In order to sublicense its
European and Asian rights to CAPHASOL, a predecessor agreement to the License
Agreement requires the Company to receive the prior written consent of the
original licensors of CAPHASOL (the “Licensors”). On April 9, 2008,
the Licensors executed formal consents to the Sublicense
Agreement. At that time, EUSA became obligated to pay $10 million
pursuant to the terms of the Sublicense Agreement. On April 11, 2008,
EUSA transferred $5 million in immediately available funds to both the Company
and InPharma in connection with the exercise of the Company’s
option. In the event that the Merger Agreement is terminated
due to the consummation of a superior proposal, as defined in the Merger
Agreement, or a financing or asset sale without EUSA's approval which is deemed
to be a breach by the Company under the covenants of the Merger Agreement, EUSA
will return to us the rights granted under the Sublicense Agreement and we will
pay EUSA $10 million plus interest calculated at 4% per annum for either
(i) the period of time between the effective date and the closing of the
superior proposal, or (ii) the period of time between the termination of
the Merger Agreement and the closing of the financing or asset sale, as
applicable.
The Company did not previously file the
February 14, 2008 amendment to the License Agreement nor the Sublicense
Agreement, as it did not believe that these agreements were material to the
Company’s business until the Company decided to exercise the option thereunder
and it received the Licensors’ consent to the Sublicense
Agreement. Now that all of the conditions to effect the Sublicense
Agreement have been met, the Company intends to file these agreements as
exhibits to a Quarterly Report on Form 10-Q for the appropriate period, or
earlier on a subsequent Form 8-K.
The information contained in this
Current Report on Form 8-K is provided for informational purposes
only. The Company is not soliciting proxies in connection with the
matters described in this Current Report on Form 8-K.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CYTOGEN
CORPORATION
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By:
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Kevin
J. Bratton
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Senior
Vice President, Finance and Chief Financial
Officer
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Dated: April
14, 2008