ex10_4.htm


    

     

     

                                                        June
      15, 2007

    


    STRICTLY
      CONFIDENTIAL

    


    Michael
      D. Becker

    President
      & Chief Executive Officer

    Cytogen
      Corporation

    650
      College Road East, Suite 3100

    Princeton,
      NJ 08540

    


    Dear
      Mr.
      Becker:

    


    This
      letter (the “Agreement”) constitutes the agreement among Cytogen Corporation
      (the “Company”) and Rodman & Renshaw, LLC (“Rodman”) and Roth Capital
      Partners LLC (“Roth”, and together with Rodman, the “Placement Agents”), that
      Rodman and Roth shall serve as co-placement agents, to perform placement agent
      services (the “Services”) for the Company, on a “best efforts” basis, in
      connection with the proposed offer and placement (the “Offering”) by the Company
      of securities of the Company (the “Securities”). The terms of the Offering and
      the Securities shall be mutually agreed upon by the Company and the investors
      and nothing herein implies that either Placement Agent would have the power
      or
      authority to bind the Company or an obligation for the Company to issue any
      Securities or complete the Offering.  The Company expressly
      acknowledges and agrees that the Placement Agents’ obligations hereunder are on
      a best efforts basis only and that the execution of this Agreement does not
      constitute a commitment by either of the Placement Agents to purchase the
      Securities and does not ensure the successful placement of the Securities or
      any
      portion thereof or the success of either of the Placement Agents with respect
      to
      securing any other financing on behalf of the Company.

    


    A.           Fees
      and Expenses.  In connection with the Services described above,
      the Company shall pay to the Placement Agents the following
      compensation:

    


    1.      Placement
      Agents’ Fee.  The Company shall pay to the Placement Agents an
      aggregate cash placement fee (the “Placement Agents’ Fee”) equal to 6% of the
      aggregate purchase price paid by each purchaser of Securities that are placed
      in
      the Offering.  The Placement Agents’ Fee shall be allocated between
      the Placement Agents, as follows:  65% to Rodman and 35% to
      Roth.

    


    2.      Warrants.  As
      additional compensation for the Services, the Company shall issue to the
      Placement Agents or their respective designees at the closing of the Offering
      (the “Closing”), warrants (the “Placement Agent Warrants”) to purchase that
      number of shares of common stock of the Company (“Shares”) equal to an aggregate
      of 6% of the aggregate number of Shares placed in the Offering.  The
      Placement Warrants shall have the same terms, including exercise price and
      registration rights, as the warrants issued to investors (“Investors”) in the
      Offering.  The Placement Agents’ Warrants shall be allocated between
      the Placement Agents as follows:  65% to Rodman and 35% to
      Roth.

    


    3.      Expenses.  In
      addition to any fees payable to the Placement Agents hereunder, but only if
      an
      Offering is consummated, the Company hereby agrees to reimburse the Placement
      Agents for their respective reasonable travel and other out-of-pocket expenses
      incurred by either Placement Agent in

     

     

    
      
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          Avenue of the Americas, 16th Floor

      

      
        New
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     connection
      with the engagement of the Placement Agents hereunder, including the reasonable
      fees and expenses of Placement Agents’ counsel.  Such reimbursement
      shall be limited to an aggregate of $25,000 without prior written approval
      by
      the Company.  The expenses shall be allocated between the Placement
      Agents in proportion to their respective expenses incurred, as submitted to
      the
      Company at closing.

    


    B.           Term
      and Termination of Engagement.  The term (the “Term”) of the
      Placement Agents’ engagement will begin on the date hereof and end on the
      earlier of the consummation of the Offering or 15 days after the receipt by
      either party hereto of written notice of termination; provided that no such
      notice may be given by the Company for a period of 30 days after the date
      hereof. Notwithstanding anything to the contrary contained herein, the
      provisions concerning confidentiality, indemnification, contribution and the
      Company’s obligations to pay fees and reimburse expenses contained herein will
      survive any expiration or termination of this Agreement.

    


    C.           Fee
      Tail.  The Placement Agents shall be entitled to a Placement
      Agent’s Fee and Placement Agent Warrants, calculated in the manner provided in
      Paragraph A, with respect to any subsequent public or private offering or other
      financing or capital-raising transaction of any kind (other than a bona fide
      licensing transaction, a sale of a portion of the Company’s assets, a financing
      in connection with the acquisition of another entity or its assets, or any
      strategic transaction not involving securities of any type) (“Subsequent
      Financing”) to the extent that such financing or capital is provided to the
      Company by investors whom either of the Placement Agents had introduced to
      the
      Company during the Term, if such Subsequent Financing is consummated at any
      time
      within the 9-month period following the expiration or termination of this
      Agreement (the “Tail Period”).  Any fees payable in connection with a
      Subsequent Financing shall be allocated between the Placement Agents as
      follows:  65% to Rodman and 35% to Roth.

    


    D.           Use
      of Information.  The Company will furnish the Placement Agents
      such written information as either of the Placement Agents shall reasonably
      request in connection with the performance of its services
      hereunder.  The Company understands, acknowledges and agrees that, in
      performing its services hereunder, the Placement Agents will use and rely
      entirely upon such information as well as publicly available information
      regarding the Company and other potential parties to an Offering and that
      neither Placement Agent assumes responsibility for independent verification
      of
      the accuracy or completeness of any information, whether publicly available
      or
      otherwise furnished to it, concerning the Company or otherwise relevant to
      an
      Offering, including, without limitation, any financial information, forecasts
      or
      projections considered by either Placement Agent in connection with the
      provision of its services.

    


    E.           Confidentiality.  In
      the event of the consummation or public announcement of any Offering, each
      Placement Agent shall have the right to disclose its participation in such
      Offering, including, without limitation, the placement at its cost of
“tombstone” advertisements in financial and other newspapers and journals. Each
      Placement Agent agrees not to use any confidential information concerning the
      Company provided to each Placement Agent by the Company for any purposes other
      than those contemplated under this Agreement.

    


    F.           Securities
      Matters.  The Company shall be responsible for any and all
      compliance with the securities laws applicable to it, including Regulation
      D and
      the Securities Act of 1933, and Rule 506 promulgated thereunder, and unless
      otherwise agreed in writing, all state securities (“blue sky”) laws. Each
      Placement Agent agrees to cooperate with counsel to the Company in that
      regard.

     

     

    
      
        
        

      

      
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    G.           Indemnity.

    


    1.      In
      connection with the Company’s engagement of Rodman and Roth as placement agents,
      the Company hereby agrees to indemnify and hold harmless each Placement Agent
      and their respective Affiliates, and the respective controlling persons,
      directors, officers, shareholders, agents and employees of any of the foregoing
      (collectively the “Indemnified Persons”), from and against any and all claims,
      actions, suits, proceedings (including those of shareholders), damages,
      liabilities and expenses incurred by any of them (including the reasonable
      fees
      and expenses of counsel), (collectively a “Claim”), which are (A) related to or
      arise out of (i) any actions taken or omitted to be taken (including any untrue
      statements made of a material fact or any statements of a material fact omitted
      to be made) by the Company, or (ii) any actions taken or omitted to be taken
      by
      any Indemnified Person in connection with the Company’s engagement of the
      Placement Agents, or (B) otherwise relate to or arise out of either Placement
      Agent’s activities on the Company’s behalf under their engagement, and the
      Company shall reimburse any Indemnified Person for all expenses (including
      the
      reasonable fees and expenses of counsel) incurred by such Indemnified Person
      in
      connection with investigating, preparing or defending any such claim, action,
      suit or proceeding, whether or not in connection with pending or threatened
      litigation in which any Indemnified Person is a party.  The Company
      will not, however, be responsible for any Claim, which is finally judicially
      determined to have resulted from the gross negligence or willful misconduct
      of
      any person seeking indemnification for such Claim.  The Company
      further agrees that no Indemnified Person shall have any liability to the
      Company for or in connection with the Company’s engagement of Rodman or Roth,
      except for any Claim incurred by the Company as a result of such Indemnified
      Person’s gross negligence or willful misconduct.

    


    2.      The
      Company further agrees that it will not, without the prior written consent
      of
      Rodman and/or Roth, as applicable, settle, compromise or consent to the entry
      of
      any judgment in any pending or threatened Claim in respect of which
      indemnification may be sought hereunder (whether or not any Indemnified Person
      is an actual or potential party to such Claim), unless such settlement,
      compromise or consent includes an unconditional, irrevocable release of each
      Indemnified Person from any and all liability arising out of such
      Claim.

    


    3.      Promptly
      upon receipt by an Indemnified Person of notice of any complaint or the
      assertion or institution of any Claim with respect to which indemnification
      is
      being sought hereunder, such Indemnified Person shall notify the Company in
      writing of such complaint or of such assertion or institution but failure to
      so
      notify the Company shall not relieve the Company from any obligation it may
      have
      hereunder, except and only to the extent such failure results in the forfeiture
      by the Company of substantial rights and defenses.  If the Company so
      elects or is requested by such Indemnified Person, the Company will assume
      the
      defense of such Claim, including the employment of counsel reasonably
      satisfactory to such Indemnified Person and the payment of the fees and expenses
      of such counsel. In the event, however, that legal counsel to such Indemnified
      Person reasonably determines that having common counsel would present such
      counsel with a conflict of interest or if the defendant in, or target of, any
      such Claim, includes an Indemnified Person and the Company, and legal counsel
      to
      such Indemnified Person reasonably concludes that there may be legal defenses
      available to it or other Indemnified Persons different from or in addition
      to
      those available to the Company, then such Indemnified Person may employ its
      own
      separate counsel to represent or defend him, her or it in any such Claim and
      the
      Company shall pay the reasonable fees and expenses of such
      counsel.  Notwithstanding anything herein to the contrary, if the
      Company fails timely or diligently to defend, contest, or otherwise protect
      against any Claim, the relevant Indemnified Party shall have the right, but
      not
      the obligation, to defend, contest, compromise, settle, assert crossclaims,
      or
      counterclaims or otherwise protect against the same, and shall be fully
      indemnified by the Company therefor, including without limitation, for the
      reasonable fees and expenses of its counsel and all amounts paid as a result
      of
      such Claim or the compromise or settlement thereof.  In addition, with
      respect to any Claim in which the Company assumes the defense, the

     

     

    
      
        
        

      

      
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     Indemnified
      Person shall have the right to participate in such Claim and to retain his,
      her
      or its own counsel therefor at his, her or its own expense.

    


    4.      The
      Company agrees that if any indemnity sought by an Indemnified Person hereunder
      is held by a court to be unavailable for any reason then (whether or not either
      Placement Agent is the Indemnified Person), the Company and the Placement Agents
      shall contribute to the Claim for which such indemnity is held unavailable
      in
      such proportion as is appropriate to reflect the relative benefits to the
      Company, on the one hand, and the Placement Agents on the other, in connection
      with the Placement Agents’ engagement referred to above, subject to the
      limitation that in no event shall the amount of either Placement Agent’s
      contribution to such Claim exceed the amount of fees actually received by such
      Placement Agent from the Company pursuant to the Placement Agents’
engagement.  The Company hereby agrees that the relative benefits to
      the Company, on the one hand, and the Placement Agents on the other, with
      respect to the Placement Agents’ engagement shall be deemed to be in the same
      proportion as (a) the total value paid or proposed to be paid or received by
      the
      Company or its stockholders as the case may be, pursuant to the Offering
      (whether or not consummated) for which is the Placement Agents are engaged
      to
      render services bears to (b) the fee paid or proposed to be paid to the
      Placement Agents in connection with such engagement.

    


    5.      The
      Company’s indemnity, reimbursement and contribution obligations under this
      Agreement (a) shall be in addition to, and shall in no way limit or otherwise
      adversely affect any rights that any Indemnified Party may have at law or at
      equity and (b) shall be effective whether or not the Company is at fault in
      any
      way.

    


    H.           Limitation
      of Engagement to the Company.  The Company acknowledges that
      Rodman and Roth have been retained only by the Company, that each Placement
      Agent is providing services hereunder as an independent contractor (and not
      in
      any fiduciary or agency capacity) and that the Company’s engagement of the
      Placement Agents is not deemed to be on behalf of, and is not intended to confer
      rights upon, any shareholder, owner or partner of the Company or any other
      person not a party hereto as against Rodman, Roth, or any of their respective
      affiliates, or any of its or their respective officers, directors, controlling
      persons (within the meaning of Section 15 of the Act or Section 20 of the
      Securities Exchange Act of 1934), employees or agents.  Unless
      otherwise expressly agreed in writing by Rodman and Roth, no one other than
      the
      Company is authorized to rely upon this Agreement or any other statements or
      conduct of the Placement Agents, and no one other than the Company is intended
      to be a beneficiary of this Agreement.  The Company acknowledges that
      any recommendation or advice, written or oral, given by either Placement Agent
      to the Company in connection with the engagement of the Placement Agents is
      intended solely for the benefit and use of the Company’s management and
      directors in considering a possible Offering, and any such recommendation or
      advice is not on behalf of, and shall not confer any rights or remedies upon,
      any other person or be used or relied upon for any other
      purpose.  Neither Placement Agent shall have the authority to make any
      commitment binding on the Company.  The Company, in its sole
      discretion, shall have the right to reject any investor introduced to it by
      either Placement Agent.  The Company agrees that it will perform and
      comply with the covenants and other obligations set forth in the purchase
      agreement and related transaction documents between the Company and the
      investors in the Offering, and that either Placement Agent will be entitled
      to
      rely on the representations, warranties, agreements and covenants of the Company
      contained in such purchase agreement and related transaction documents as if
      such representations, warranties, agreements and covenants were made directly
      to
      such Placement Agent by the Company.

    


    I.           Limitation
      of Placement Agents’ Liability to the Company.  The Placement
      Agents and the Company further agree that neither Placement Agent nor any of
      their respective affiliates or any of their respective officers, directors,
      controlling persons (within the meaning of Section 15 of the Act or Section
      20
      of the Exchange Act of 1934), employees or agents shall have any liability
      to
      the Company, its

     

     

    
      
        
        

      

      
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     security
      holders or creditors, or any person asserting claims on behalf of or in the
      right of the Company (whether direct or indirect, in contract, tort, for an
      act
      of negligence or otherwise) for any losses, fees, damages, liabilities, costs,
      expenses or equitable relief arising out of or relating to this Agreement or
      the
      Services rendered hereunder, except for losses, fees, damages, liabilities,
      costs or expenses that arise out of or are based on any action of or failure
      to
      act by either Placement Agent and that are finally judicially determined to
      have
      resulted solely from the gross negligence or willful misconduct of such
      Placement Agent.

    


    J.           Governing
      Law.  This Agreement shall be governed by and construed in
      accordance with the laws of the State of New York applicable to agreements
      made
      and to be fully performed therein.  Any disputes which arise under
      this Agreement, even after the termination of this Agreement, will be heard
      only
      in the state or federal courts located in the City of New York, State of New
      York.  The parties hereto expressly agree to submit themselves to the
      jurisdiction of the foregoing courts in the City of New York, State of New
      York.
      The parties hereto expressly waive any rights they may have to contest the
      jurisdiction, venue or authority of any court sitting in the City and State
      of
      New York.  In the event of the bringing of any action, or suit by a
      party hereto against the other party hereto, arising out of or relating to
      this
      Agreement, the party in whose favor the final judgment or award shall be entered
      shall be entitled to have and recover from the other party the costs and
      expenses incurred in connection therewith, including its reasonable attorneys’
fees.  Any rights to trial by jury with respect to any such action,
      proceeding or suit are hereby waived by Rodman and the Company.

    


    K.  Notices.  All
      notices hereunder will be in writing and sent by certified mail, hand delivery,
      overnight delivery or telefax, if sent to Rodman, to Rodman & Renshaw, LLC,
      1270 Avenue of the Americas, 16th Floor, New York, NY  10020, Telefax
      number (212) 356-0536, Attention: Thomas Pinou, and if sent to the Company,
      to
      Cytogen Corporation, 650 College Road East, Suite 3100, Princeton, New Jersey
      08540, Telefax number (609) 452-2317, Attention: Kevin Bratton, CFO, with a
      copy
      to William J. Thomas, General Counsel, Telefax number (609)
      452-2434.  Notices sent by certified mail shall be deemed received
      five days thereafter, notices sent by hand delivery or overnight delivery shall
      be deemed received on the date of the relevant written record of receipt, and
      notices delivered by telefax shall be deemed received as of the date and time
      printed thereon by the telefax machine.

     

    L.  Miscellaneous.  This
      Agreement shall not be modified or amended except in writing signed by Rodman,
      Roth, and the Company.  This Agreement shall be binding upon and inure
      to the benefit of Rodman, Roth, and the Company and their respective assigns,
      successors, and legal representatives.  This Agreement constitutes the
      entire agreement of Rodman, Roth, and the Company with respect to the subject
      matter hereof and supersedes any prior agreements. If any provision of this
      Agreement is determined to be invalid or unenforceable in any respect, such
      determination will not affect such provision in any other respect, and the
      remainder of the Agreement shall remain in full force and
      effect.  This Agreement may be executed in counterparts (including
      facsimile counterparts), each of which shall be deemed an original but all
      of
      which together shall constitute one and the same instrument.

    


    


    
      
        
        

      

      
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    In
      acknowledgment that the foregoing correctly sets forth the understanding reached
      by Rodman, Roth and the Company, please sign in the space provided below,
      whereupon this letter shall constitute a binding Agreement as of the date
      indicated above.

     

    
      
        	 	
                Very
                  truly yours,

                 

                 

                 

                 

              
	 	
                RODMAN
                  & RENSHAW, LLC

              
	 	 	 
	 	
                By:

              	 /s/
	 	 	
                Name:

              
	 	 	
                Title:

              


      

    

    


     

    


    
      	 	
              ROTH
                CAPITAL PARTNERS, LLC

            
	 	 	 
	 	
              By:

            	 /s/
	 	 	
              Name:

            
	 	 	
              Title:

            


    

    


    


    


    Accepted
      and Agreed:

    


    
      	
              CYTOGEN
                CORPORATION

            
	 
	 /s/
              William J. Thomas
	
              Name:   
                William J. Thomas

            
	
              Title:      
                Senior Vice President and

              General
                Counsel

            


    

    


    
      
        
        

      

      
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