AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 15, 2004
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PROGENICS PHARMACEUTICALS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 777 OLD SAW MILL RIVER ROAD 13-3379479
(STATE OR OTHER JURISDICTION OF TARRYTOWN, NEW YORK 10591 (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) IDENTIFICATION NO.)
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AMENDED AND RESTATED 1996 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
PAUL J. MADDON, M.D., PH.D.
CHIEF EXECUTIVE OFFICER AND CHIEF SCIENCE OFFICER
PROGENICS PHARMACEUTICALS, INC.
777 SAW MILL RIVER ROAD
TARRYTOWN, NEW YORK 10591
(Name and address of agent for service)
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE:
(914) 789-2800
CALCULATION OF REGISTRATION FEE
================================================================================================================
TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE
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Common Stock, $0.0013 par
value per share 3,100,000 $14.17 $43,927,000 $5,566
================================================================================================================
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(1) Plus such additional shares as may be issued by reason of stock splits, stock dividends or similar transactions.
(2) Pursuant to Rules 457(h) and 457(c), these prices are estimated solely for the purpose of calculating the registration fee and are based upon the average of the high and low sales prices of the Registrant's common stock on the Nasdaq National Market on November 10, 2004.
EXPLANATORY STATEMENT
This Form S-8 Registration Statement is being filed with the Securities and Exchange Commission (the "Commission") by Progenics Pharmaceuticals, Inc., a Delaware corporation (the "Company"), in order to register 3,100,000 shares of the Company's common stock, par value $0.0013 per share (the "Common Stock"), issuable upon exercise of options granted or to be granted under the Company's Amended and Restated 1996 Stock Incentive Plan (the "Plan"). On May 8, 1998, the Company filed with the Commission a Registration Statement on Form S-8 (Registration No. 333-52277) registering up to 1,050,000 shares of Common Stock issuable under the Plan (the "Initial Registration Statement"). On June 11, 1998, the Company filed with the Commission a Registration Statement on Form S-8 (Registration No. 333-56571) registering up to 850,000 additional shares of Common Stock issuable under the Plan (such registration statement, together with the Initial Registration Statement, being hereinafter referred to as the "Prior Registration Statements"). With the addition of 3,100,000 shares pursuant to this Registration Statement, the total number of shares now registered for issuance pursuant to the Plan is 5,000,000. Pursuant to General Instruction E of Form S-8, the Company hereby incorporates by reference in this Registration Statement all contents of the Prior Registration Statements, including the exhibits thereto.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 (the "Registration Statement") is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended. The documents containing the information specified in Part I will be delivered to the participants in the plan covered by this Registration Statement as required by Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are hereby incorporated by reference:
a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2003;
b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2004, June 30, 2004 and September 30, 2004; and
c) The description of the Company's Common Stock in the Registrant's registration statement on Form 8-A dated September 29, 1997, File No. 0-23143 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") including all amendments or reports filed with the Commission for the purpose of updating such description.
All other documents subsequently filed by the Registrant 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 hereunder have been sold or which deregisters all such securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration 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(a) of the General Corporation Law of the State of Delaware (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, 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 he 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 enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 cause to believe his 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 such person acted in any of the capacities set forth above, against expenses actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted under similar standards, except that no indemnification may 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 unless and only to the extent that the court in which such action or suit was brought shall determine that despite the adjudication of liability, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue, or matter therein, he shall be indemnified against expenses actually and reasonably incurred by him in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation may purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liabilities under such Section 145.
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 members of its board of directors or governing body for breach of a director's fiduciary duty. However, no such provision may eliminate or limit the liability of a director for breaching his duty of loyalty, failing to act in good faith, engaging in intentional misconduct or knowingly violating a law, paying a dividend or approving a stock repurchase which was illegal, or obtaining 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. The Registrant's Restated Certificate of Incorporation contains such a provision.
The Registrant's Certificate of Incorporation and By-Laws provide that the Registrant shall indemnify officers and directors, and to the extent authorized by the Board of Directors, employees and agents of the Registrant, to the full extent permitted by and in the manner permissible under the laws of the State of Delaware. In addition, the By-Laws permit the Board of Directors to authorize the Registrant to purchase and maintain insurance against any liability asserted against any director, officer, employee or agent of the Registrant arising out of his capacity as such.
The Registrant has entered into Indemnification Agreements with each of its officers and directors, pursuant to which the Registrant has agreed to indemnify and advance expenses to such officers and directors to the fullest extent permitted by applicable law.
The Registrant has obtained an insurance policy providing coverage for certain liabilities of its officers and directors.
ITEM7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as Exhibits hereto:
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
3.1 Certificate of Incorporation of the Company, as amended Incorporated by reference
from Exhibit 3.1 to the
Company's Form S-1
Registration Statement No.
333-13627 dated November 19,
1997
5.1 Opinion and Consent of Dewey Ballantine LLP with respect to Filed herewith
the legality of the securities being registered
10.1 Amended and Restated 1996 Stock Incentive Plan Filed herewith
23.1 Consent of Dewey Ballantine LLP (contained in their opinion Filed herewith
filed herewith as Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP Filed herewith
24.1 Power of Attorney of directors and certain officers of the Filed herewith
Company (included in Signature Page)
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ITEM 9. UNDERTAKINGS.
a) 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;
(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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 of Form F-3, and 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 Commission 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.
b) 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 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.
c) 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 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.
SIGNATURES
The Registrant. 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-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tarrytown, State of New York, on September 30, 2004.
PROGENICS PHARMACEUTICALS, INC.
By: /s/ PAUL J. MADDON, M.D., PH.D.
-------------------------------
Paul J. Maddon, M.D., Ph.D.
Chairman of the Board and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the persons whose names appear below constitute and appoint Paul J. Maddon, M.D., Ph.D., Ronald J. Prentki and Robert A. McKinney, and each of them, as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to execute any and all amendments to this Registration Statement, and to file the same, together with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and such other agencies, offices and persons as may be required by applicable law, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent 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 dates indicated.
Signature Capacity Date
--------- -------- ----
/s/ PAUL J. MADDON, M.D., PH.D. Chairman of the Board and Chief Executive September 30, 2004
------------------------------- Officer (Principal Executive Officer)
Paul J. Maddon, M.D., Ph.D.
/s/ ROBERT A. MCKINNEY Vice President, Finance & Operations and September 30, 2004
----------------------- Treasurer (Principal Financial and
Robert A. McKinney Accounting Officer)
/s/ CHARLES A. BAKER Director September 30, 2004
--------------------
Charles A. Baker
/s/ KURT W. BRINER Director September 30, 2004
------------------
Kurt W. Briner
/s/ MARK F. DALTON Director September 30, 2004
------------------
Mark F. Dalton
/s/ STEPHEN P. GOFF, PH.D. Director September 30, 2004
--------------------------
Stephen P. Goff, Ph.D.
/s/ PAUL F. JACOBSON Director September 30, 2004
--------------------
Paul F. Jacobson
/s/ RONALD J. PRENTKI President and Director September 30, 2004
---------------------
Ronald J. Prentki
/s/ DAVID A. SCHEINBERG, M.D., PH.D. Director September 30, 2004
------------------------------------
David A. Scheinberg, M.D., Ph.D.
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Exhibit 5.1
Opinion and Consent of Dewey Ballantine LLP with respect to the legality of the securities being registered
November 15, 2004
Progenics Pharmaceuticals, Inc.
777 Old Saw Mill River Road
Tarrytown, New York 10591
Gentlemen:
We have acted as counsel to Progenics Pharmaceuticals, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing by the Company of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, for the registration of 3,100,000 shares of the Company's common stock, $0.0013 par value per share (the "Shares"), which may be issued upon exercise of stock options, stock appreciation rights, restricted stock, stock units and stock awards pursuant to the Company's Amended and Restated 1996 Stock Incentive Plan (the "Plan").
We have examined and are familiar with the originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and officers of the Company and such other instruments as we have deemed necessary or appropriate as a basis for the opinions expressed below.
Based on the foregoing, we are of the opinion that:
1. The issuance of the Shares under the Plan has been lawfully and duly authorized; and
2. When the Shares have been issued and delivered in accordance with the terms of the Plan, the Shares will be legally issued, fully paid and nonassesable.
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 come within the category of person whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
DEWEY BALLANTINE LLP
EXHIBIT 10.1
PROGENICS PHARMACEUTICALS, INC.
AMENDED AND RESTATED 1996 STOCK INCENTIVE PLAN
(INCLUDING AMENDMENTS THROUGH JUNE 18, 2002)
1. PURPOSE OF THE PLAN
The purpose of the Progenics Pharmaceuticals, Inc. Amended and Restated 1996 Stock Incentive Plan is to promote the interests of the Company and its shareholders by strengthening the Company's ability to attract, motivate and retain employees, directors, advisors and consultants of the Company, and to provide a means to encourage stock ownership and a proprietary interest in the Company by the employees, directors consultants and advisors to the Company upon whose judgment, initiative, and efforts the financial success and growth of the business of the Company largely depend.
2. DEFINITIONS
(a) "Award" means an award of an Option, Restricted Stock, Stock Appreciation Right, Performance Award or Phantom Stock granted under the Plan.
(b) "Award Agreement" means an agreement entered into between the Company and a Participant setting forth the terms and conditions of an Award granted to a Participant.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Compensation Committee of the Board, or such other members of the Board appointed by the Board to administer the Plan from time to time.
(f) "Common Stock" means the $0.0013 par value common stock of the Company.
(g) "Company" means Progenics Pharmaceuticals, Inc., a Delaware corporation.
(h) "Date of Grant" means the date on which an Award under the Plan is made by the Committee, or such later date as the Committee may specify that the Award becomes effective.
(i) "Disability" means a "permanent and total disability" within the meaning of Section 22(e)(3) of the Code.
(j) "Eligible Person" means an Employee, director, advisor or consultant of the Company or any of its Subsidiaries, including all non employee directors of the Company.
(k) "Employee" means any person who is an employee of the Company or of any of its Subsidiaries.
(l) "Fair Market Value" means the last reported sales prices of the Common Stock on the Nasdaq National Market on the date as of which fair market value is to be determined or, in the absence of any reported sales of Common Stock on such date, on the first preceding date on which any such sale shall have been reported. If Common Stock is not listed on the Nasdaq National Market on the date as of which fair market value is to be determined, the Committee shall determine in good faith the fair market value in whatever manner it considers appropriate.
(m) "Incentive Stock Option" means an option to purchase Common Stock that is intended to qualify under section 422 of the Code and the Treasury Regulations thereunder.
(n) "Nonqualified Stock Option" means an option to purchase Common Stock that is not an Incentive Stock Option.
(o) "Option" means an Incentive Stock Option or a Nonqualified Stock Option granted under Section 6 hereof.
(p) "Participant" means any Eligible Person who has received an Award under the Plan.
(q) "Phantom Stock" means an Award under Section 10 hereof entitling a Participant to a payment at the end of a vesting period of a unit value based on the Fair Market Value of a share of Common Stock.
(r) "Plan" means the Amended and Restated 1996 Stock Incentive Plan as set forth herein, as it may be amended from time to time.
(s) "Performance Award" means an Award made under Section 9 hereof entitling a Participant to a payment based on the value of Common Stock (a "Performance Share") or based on specified dollar units (a "Performance Unit") at the end of a performance period if certain conditions as may be established by the Committee are satisfied.
(t) "Restricted Stock" means an Award under Section 8 hereof entitling a Participant to shares of Common Stock that are nontransferable and subject to forfeiture until specific conditions established by the Committee are satisfied.
(u) "Stock Appreciation Right" or "SAR" means an Award under
Section 7 hereof entitling a Participant to receive an amount, representing the
difference between the base price per share of the right and the Fair Market
Value of a share of Common Stock on the date of exercise.
(v) "Subsidiary" means any affiliate of the Company, as determined by the Committee from time to time; provided, however that with respect to Incentive Stock Options, "Subsidiary" means a "subsidiary corporation" within the meaning of section 424(f) of the Code.
3. SHARES OF COMMON STOCK SUBJECT TO THE PLAN
3.1. Number of Shares. Subject to the following provisions of this
Section 3, the aggregate number of shares of Common Stock that may be issued or
transferred or exercised pursuant to Awards under the Plan is 5,000,000 shares
of Common Stock. The shares of Common Stock to be delivered under the Plan will
be made available, at the discretion of the Board or the Committee, either from
authorized but unissued shares of Common Stock or from shares of Common Stock
held in the Company's treasury. If any share of Common Stock that is the subject
of an Award is not issued or transferred and ceases to be issuable or
transferable for any reason, such share of Common Stock will no longer be
charged against such maximum share limitation and may again be made subject to
Awards under the Plan.
3.2. Adjustments. If there shall occur any recapitalization, reclassification, stock dividend, stock split, reverse stock split or other distribution with respect to the shares of Common Stock, or any similar corporate transaction or event in respect of the Common Stock, then the Committee shall, in the manner and to the extent that it deems appropriate and equitable to the Participants and consistent with the terms of this Plan, cause a proportionate adjustment to be made in (i) the maximum number and kind of shares provided in Section 3.1 hereof, (ii) the number and kind of shares, units, or other securities subject to the then outstanding Awards, and (iii) the price for each share or unit or other right subject to then outstanding Awards without change in the aggregate purchase price or value as to which such Awards remain exercisable or subject to restrictions; (iv) the performance targets or goals appropriate to any other outstanding Performance Awards, or (v) any other terms that are affected by the event.
4. ADMINISTRATION OF THE PLAN
4.1. Committee Members. The Plan will be administered by the Committee which, to the extent deemed necessary or appropriate by the Board, will consist of two or more persons who satisfy the requirements for a "nonemployee director" under Rule 16b-3 promulgated under the Securities Exchange Act of 1934. The Committee has and may exercise such powers and authority of the Board as may be necessary or appropriate for the Committee to carry out its functions as described in the Plan. No member of the Board nor the Committee will be liable for any action or determination made in good faith by the Board or the Committee with respect to the Plan or any Award under it.
4.2. Discretionary Authority. Subject to the express limitation of the Plan, the Committee has authority in its discretion to determine the Eligible Persons to whom, and the time or times at which, Awards may be granted, the number of shares, units or other rights subject to each Award, the exercise, base or purchase price of an Award (if any), the time or times at which an Award will become vested, exercisable or payable and the duration of the Award. The Committee also has discretionary authority to interpret the Plan, to make all factual determinations under the Plan, and to determine the terms and provisions of the respective Award Agreements and to make all other determinations necessary or advisable for Plan administration. The Committee has authority to prescribe, amend, and rescind rules and regulations relating to the Plan. All interpretations, determinations, and actions by the Committee will be final, conclusive, and binding upon all parties. The Committee may delegate to the officers of the Company the authority to award option grants under the Plan to Eligible Persons, any such delegation to be subject to such restrictions or limitations as the Committee may from time to time require.
4.3. Changes to Awards. The Committee shall have the authority to effect, at any time and from time to time, with the consent of the affected Participants, (i) the cancellation of any or all outstanding Awards and the grant in substitution therefor of new Awards covering the same or different numbers of shares of Common Stock and having an exercise or base price which may be the same as or different than the exercise or base price of the cancelled Awards or (ii) the amendment of the terms of any and all outstanding Awards. The Committee may in its discretion accelerate the vesting or exercisability of an Award at any time.
4.4. Delegation of Authority. The Committee shall have authority to delegate to one or more officers of the Company designated by the Committee the authority to grant Awards under the Plan, subject to such conditions, limitations or restrictions as the Committee shall specify.
5. ELIGIBILITY AND AWARDS
All Eligible Persons are eligible to be designated by the Committee to receive an Award under the Plan. The Committee has authority, in its sole discretion, to determine and designate from time to time those Eligible Persons who are to be granted Awards, and the type and amount of Award to be granted. Each Award will be evidenced by an Award Agreement as described in Section 11 hereof between the Company and the Participant that may include any terms and conditions consistent with the Plan as the Committee may determine.
6. STOCK OPTIONS
6.1. Grant of Option; Exercise Price. An Option may be granted to any Eligible Person selected by the Committee; provided, however, that only Employees meeting the requirements of Treasury Regulation Section 1.421-7(h) shall be eligible for Awards of Incentive Stock Options. Each Option shall be designated, at the discretion of the Committee, as an Incentive Stock Option or a Nonqualified Stock Option. The exercise price of the Option shall be determined by the Committee; provided, however, that the exercise price of an Incentive Stock Option shall not be less than 100 percent of the Fair Market Value of the Common Stock subject to the Option on the Date of Grant.
6.2. Vesting; Term of Option. The Committee, in its sole discretion, shall prescribe in the Award Agreement for a Participant the time or times at which, or the conditions upon which, an Option or portion thereof shall become vested and exercisable, and may accelerate the exercisability of any Option at any time. An Option may become vested and exercisable upon a Participant's retirement, death, Disability or other event to the extent provided in an Award Agreement. The period during which a vested Option may be exercised shall be ten years from the Date of Grant, unless a shorter exercise period is specified by the Committee in an Award Agreement.
6.3. Option Exercise; Withholding. An Option may be exercised in whole or in part at any time, with respect to whole shares only, within the period permitted for the exercise thereof, and shall be exercised by written notice of intent to exercise the Option with respect to a specified number of shares delivered to the Company at its principal office, and payment in full to the Company at said office of the amount of the exercise price for the number of shares of the Common Stock with respect to which the Option is then being exercised. Payment of the exercise price shall be made (i) in cash or by cash equivalent, (ii) at the discretion of the Committee, in Common Stock (not subject to limitations on transfer) valued at the Fair Market Value of such shares on the trading date immediately preceding the date of exercise or (iii) at the discretion of the Committee, by a combination of such cash and such Common Stock. In addition to and at the time of payment of the exercise price, the Participant shall pay to the Company in cash or, at the discretion of the Committee, in Common Stock the full amount of all applicable income tax and employment tax amounts required to be withheld in connection with such exercise.
6.4. Limited Transferability. Solely to the extent permitted by the Committee in an Award Agreement, a Nonqualified Stock Option (but not an Incentive Stock Option) may be transferred to members of the Participant's immediate family, charitable institutions, or trusts or partnerships whose beneficiaries are any of the foregoing, and/or to such other persons or entities as may be approved by the Committee, in each case subject to the condition that the Committee be satisfied that such transfer is being made for estate or tax planning purposes or for gratuitous or donative purposes, without consideration (other than nominal consideration) being received therefor.
6.5. Additional Rules for Incentive Stock Options.
(a) Annual Limits. No Incentive Stock Option shall be granted to a Participant as a result of which the aggregate fair market value (determined as of the Date of Grant) of the stock with respect to which incentive stock options are exercisable for the first time in any calendar year under the Plan, and any other stock option plans of the Company, any Subsidiary or any parent corporation, would exceed $100,000, determined in accordance with section 422(d) of the Code. This limitation shall be applied by taking options into account in the order in which granted.
(b) Termination of Employment. Any Incentive Stock Option granted under the Plan shall be subject to such limitations on the period of exercise following termination of employment, including such special rules relating to death and Disability, as shall be determined by the Committee to be consistent with section 422 of the Code and Treasury Regulations thereunder and set forth in the applicable Award Agreement.
(c) Ten-Percent Owners. Notwithstanding any other provisions of this Plan to the contrary, in the case of an Incentive Stock Option granted to an Employee who, at the time an Incentive Stock Options is granted, owns stock possessing more than ten percent of the total combined voting power of all classes of stock of the Company, its parent, if any, or any Subsidiary, as determined under sections 422(b)(6) and 424(d) of the Code, (i) the period during which any such Incentive Stock Option may be exercised shall not be greater than five years from the Date of Grant and (ii) the exercise price of such Incentive Stock Option shall not be less than 110 percent of the Fair Market Value of a share of Common Stock on the Date of Grant.
(d) Disqualifying Dispositions. If shares of Common Stock acquired by exercise of an Incentive Stock Option are disposed of within two years following the Date of Grant or one year following the transfer of such shares to the Participant upon exercise, the Participant shall, promptly following such disposition, notify the Company in writing of the date and terms of such disposition and provide such other information regarding the disposition as the Committee may reasonably require.
(e) Other Terms and Conditions; Nontransferability. Any Incentive Stock Option granted hereunder shall contain such additional terms and conditions, not inconsistent with the terms of this Plan, as are deemed necessary or desirable by the Committee, which terms, together with the terms of this Plan, shall be intended and interpreted to cause such Incentive Stock Option to qualify as an "incentive stock option" under Section 422 of the Code. Such terms shall include limitations on the period of exercise of the Incentive Stock Option following termination of employment consistent with Section 422 of the Code. An Incentive Stock Option shall by its terms be nontransferable otherwise than by will or by the laws of descent and distribution, and shall be exercisable, during the lifetime of a Participant only by such Participant.
7. STOCK APPRECIATION RIGHTS
7.1. Grant of SARs. A Stock Appreciation Right granted to a Participant is an Award in the form of a right to receive, upon surrender of the right, but without other payment, an amount based on appreciation in the value of the Common Stock over a base price established for the Award, payable in cash, Common Stock or such other form or combination of forms of payout, exercisable at such time or times and upon conditions as may be approved by the Committee.
7.2. Tandem SARs. A Stock Appreciation Right may be granted in connection with an Option, either at the time of grant or at any time thereafter during the term of the Option. An SAR granted in connection with an Option will entitle the holder, upon exercise, to surrender such Option or any portion thereof to the extent unexercised, with respect to the number of shares as to which such SAR is exercised, and to receive payment of an amount computed as described below. Such Option will, to the extent and when surrendered, cease to be exercisable. An SAR granted in connection with an Option hereunder will be exercisable at such time or times, and only to the extent, that a related Option is exercisable, and will expire no later than the related Option expires. Upon the exercise of an SAR granted in connection with an Option, the holder will be entitled to receive payment of an amount determined by multiplying: (i) the difference between the exercise price of a share of Common Stock specified in the related Option and the Fair Market Value of a share of Common Stock on the date of exercise of such SAR, by (ii) the number of shares as to which such SAR will have been exercised.
7.3. Freestanding SARs. A Stock Appreciation Right may be granted without relationship to an Option and, in such case, will be exercisable as determined by the Committee, but in no event after 10 years from the Date of Grant. The base price of an SAR granted without relationship to an Option shall be determined by the Committee in its sole discretion. An SAR granted without relationship to an Option will entitle the holder, upon exercise of the SAR, to receive payment of an amount determined by multiplying: (i) the difference between the base price of the SAR and the Fair Market Value of a share of Common Stock on the date of exercise of such SAR, by (ii) the number of shares as to which such SAR will have been exercised.
7.4. Payment of SARs. Payment of the amount determined under Section 7.2 or 7.3 hereof may be made, in the discretion of the Committee, in cash, in shares of Common Stock valued at their Fair Market Value on the date of exercise or in a combination of cash and shares of Common Stock.
8. RESTRICTED STOCK
8.1. Grants of Restricted Stock. An award of Restricted Stock to a Participant represents shares of Common Stock that are issued subject to restrictions on transfer and such other restrictions on incidents of ownership and forfeiture conditions as the Committee may determine. The restrictions imposed upon Restricted Stock will lapse in accordance with a schedule or other conditions as determined by the Committee. The Committee may, in connection with an award of Restricted Stock, require the payment of a specified purchase price.
8.2. Restrictions. Shares of Restricted Stock may not be transferred, assigned or subject to any encumbrance, pledge or charge until all applicable restrictions are removed or expire or unless otherwise allowed by the Committee. The Committee may require the Participant to enter into an escrow agreement providing that the certificates representing Restricted Stock granted or sold pursuant to the Plan will remain in the physical custody of an escrow holder until all restrictions are removed or expire. Each certificate representing Restricted Stock granted pursuant to the Plan will bear a legend making appropriate reference to the restrictions imposed. The Committee may impose such conditions on any shares of Restricted Stock as it may deem advisable, including, without limitation, restrictions under the Securities Act of 1933, as amended, under the requirements of any stock exchange upon which such shares of the same class are then listed, and under any blue sky or other securities laws applicable to such shares.
8.3. Rights as Stockholder. Subject to the foregoing provisions of this
Section 8 and the applicable Award Agreement, Section 8.1 hereof, the holder
will have all rights of a shareholder with respect to shares of Restricted Stock
granted to him or her, including the right to vote the shares and receive all
dividends and other distributions paid or made with respect thereto, unless the
Committee determines otherwise at the time the Restricted Stock is granted.
8.4. Section 83(b) Election. If a Participant makes an election pursuant to section 83(b) of the Code, the Participant shall be required to promptly file a copy of such election with the Company.
9. PERFORMANCE AWARDS
9.1. Grant of Performance Awards. The Committee may grant Performance Awards, which shall be denominated on the Date of Grant either in shares of Common Stock (Performance Shares) or in specified dollar units (Performance Units). At the time of a Performance Award grant, the Committee shall determine, in its sole discretion, one or more performance periods and performance goals to be achieved during the applicable performance periods, as well as such other restrictions and conditions as the Committee deems appropriate. In the case of Performance Units, the Committee shall also determine a target unit value or a range of unit values for each Award. No performance period shall exceed ten years from the date of the grant. The performance goals applicable to a Performance Award grant may be subject to such later revisions as the Committee shall deem appropriate to reflect significant unforeseen events such as changes in law, accounting practices or unusual or nonrecurring items or occurrences.
9.2. Payment of Performance Awards. At the end of the performance period, the Committee shall determine the extent to which performance goals have been attained or a degree of achievement between maximum and minimum levels in order to establish the level of payment to be made, if any, and shall determine if payment is to be made in the form of cash or Common Stock (valued at its Fair Market Value at the time of payment) or a combination of cash and Common Stock. In the case of Performance Shares, the Committee may provide that during a performance period a Participant shall be paid with respect to each Performance Share a cash amount in the same amount and at the same time as a dividend is paid on a share of Common Stock.
10. PHANTOM STOCK
10.1. Grant of Phantom Stock. Phantom Stock is an Award to a Participant of a number of hypothetical share units with respect to shares of Common Stock, with an initial value based on the Fair Market Value of the Common Stock on the Date of Grant. Phantom Stock shall be subject to such restrictions and conditions as the Committee shall determine. On the Date of Grant, the Committee shall determine, in its sole discretion, the vesting period of the Phantom Stock and the maximum value of the Phantom Stock, if any. No vesting period shall exceed 10 years from the date of the grant.
10.2. Payment of Phantom Stock. At the end of the vesting period applicable to Phantom Stock granted to a Participant, a cash amount equivalent in value to the Fair Market Value of one share of Common Stock on the last day of the vesting period, subject to any maximum value determined by the Committee at the time of grant, shall be paid with respect to each such Phantom Stock unit to the Participant. The Committee may provide that during the vesting period a Participant shall be paid with respect to each Phantom Stock unit, cash amounts in the same amount and at the same time as a dividend on a share of Common Stock.
11. AWARD AGREEMENTS
11.1. Form of Agreement. Each Award under this Plan shall be evidenced by an Award Agreement in a form approved by the Committee setting forth the number of shares of Common Stock, units or other rights (as applicable) subject to the Award, the exercise, base or purchase price (if any) of the Award, the time or times at which an Award will become vested, exercisable or payable, the duration of the Award and, in the case of Performance Awards, the applicable performance goals. The Award Agreement shall also set forth other material terms and conditions applicable to the Award as determined by the Committee consistent with the limitations of this Plan.
11.2. Termination of Employment. The Award Agreements may include provisions describing the treatment of an Award in the event of the retirement, disability, death or other termination of a Participant's employment with or other services to the Company, including any provisions relating to the vesting, exercisability, acceleration, forfeiture or cancellation of the Award in these circumstances, including such provisions as required for Incentive Stock Options pursuant to Section 6.4(b) thereof.
11.3. Contract Rights. Any obligation of the Company to any Participant with respect to an Award shall be based solely upon contractual obligations created by this Plan and an Award Agreement. No Award shall be enforceable until the Award Agreement or a receipt has been signed by the Participant and on behalf of the Company by its authorized representative. By executing the Award Agreement or receipt, a Participant shall be deemed to have accepted and consented to the terms of this Plan and any action taken in good faith under this Plan by and within the discretion of the Committee, the Board of Directors of their delegates.
12. EFFECTIVE DATE, TERMINATION AND AMENDMENT
12.1. Effective Date. The Plan shall become effective on the date of its adoption by the Board; provided, however, that no Incentive Stock Option shall be exercisable by a Participant unless and until the Plan shall have been approved by the stockholders of the Company, which approval shall be obtained within 12 months before or after the adoption of the Plan by the Board.
12.2. Termination. The Plan shall terminate on the date immediately preceding the tenth anniversary of the earlier of the date the Plan is adopted by the Board or the date the Plan is approved by the Company's stockholders. The Board may, in its sole discretion and at any earlier date, terminate the Plan. Notwithstanding the foregoing, no termination of the Plan shall in any manner affect any Award theretofore granted without the consent of the Participant or the permitted transferee of the Award.
12.3. Amendment. The Board may at any time and from time to time and in any respect, amend or modify the Plan; provided, however, that no amendment or modification of the Plan shall in any manner affect any Award theretofore granted without the consent of the Participant or the permitted transferee of the Award.
13. GENERAL PROVISIONS
13.1. Assignment and Transfer. Except as provided in Section 6.3 hereof, Awards under the Plan shall not be assignable nor transferable, except by will or by the laws of descent and distribution, and during the lifetime of a Participant the Award shall be exercised only by such Participant or by his or her guardian or legal representative.
13.2. Rights as Stockholder. A Participant shall have no rights as a holder of Common Stock with respect to any unissued securities covered by an Award until the date the Participant becomes the holder of record of these securities. Except as provided in Section 3.2 hereof, no adjustment or other provision shall be made for dividends or other stockholder rights, except to the extent that the Award Agreement provides for dividend payments or similar economic benefits.
13.3. Employment. Nothing in the Plan, in the grant of any Award or in any Award Agreement shall confer upon any Eligible Person the right to continue in the capacity in which he is employed by or otherwise serves the Company or any Subsidiary.
13.4. Securities Laws. No shares of Common Stock will be issued or transferred pursuant to an Award unless and until all then applicable requirements imposed by federal and state securities and other laws, rules and regulations and by any regulatory agencies having jurisdiction, and by any stock exchanges upon which the Common Stock may be listed, have been fully met. As a condition precedent to the issuance of shares pursuant to the grant or exercise of an Award, the Company may require the Participant to take any reasonable action to meet such requirements.
13.5. Tax Withholding. The Participant shall be responsible for payment of any taxes or similar charges required by law to be withheld from an Award or an amount paid in satisfaction of an Award and these obligations shall be paid by the Participant on or prior to the payment of the Award. The Award Agreement shall specify the manner in which the withholding obligation shall be satisfied with respect to the particular type of Award.
13.6. Other Compensation and Benefit Plans. The adoption of the Plan shall not affect any other stock incentive or other compensation plans in effect for the Company or any Subsidiary, nor shall the Plan preclude the Company from establishing any other forms of stock incentive or other compensation for employees of the Company or any Subsidiary. The amount of any compensation deemed to be received by Participant pursuant to an Award shall not constitute compensation with respect to which any other employee benefits of such Participant are determined, including, without limitation, benefits under any bonus, pension, profit sharing, life insurance or salary continuation plan, except as otherwise specifically provided by the terms of such plan.
13.7. Plan Binding on Successors. The Plan shall be binding upon the Company, its successors and assigns, and the Participant, his executor, administrator and permitted transferees.
13.8. Construction and Interpretation. Whenever used herein, nouns in the singular shall include the plural, and the masculine pronoun shall include the feminine gender. Headings of Articles and Sections hereof are inserted for convenience and reference and constitute no part of the Plan.
13.9. Severability. If any provision of the Plan or any Award Agreement shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof shall be severable and enforceable in accordance with their terms, and all provisions shall remain enforceable in any other jurisdiction.
13.10. Governing Law. The validity and construction of this Plan and of the Award Agreements shall be governed by the laws of the State of Delaware.
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 26, 2004 relating to the financial statements of Progenics Pharmaceuticals, Inc., which appears in Progenics Pharmaceuticals, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2003.
/s/ PricewaterhouseCoopers LLP New York, New York November 12, 2004 |