forms8stockplan.htm
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
(State
or other jurisdiction of incorporation or organization)
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777
Old Saw Mill River Road
Tarrytown,
New York 10591
(Address
of Principal Executive Offices) (Zip Code)
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13-3379479
(I.R.S.
Employer
Identification
No.)
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Amended
1998 Employee Stock Purchase Plan
Amended
1998 Non-Qualified Employee Stock Purchase 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
Securities
To
Be Registered
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Amount
To
Be Registered(1)(2)
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Proposed
Maximum
Offering
Price
Per
Share(3)
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Proposed
Maximum
Aggregate
Offering
Price(3)
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Amount
of
Registration
Fee
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Common
Stock, $0.0013 par value per share
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900,000
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$16.17
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$14,553,000
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$572.00
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(1)
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Represents
800,000 shares issuable upon exercise of options to be granted pursuant to
the Amended 1998 Employee Stock Purchase Plan and 100,000 shares issuable
upon exercise of options to be granted pursuant to the Amended 1998
Non-Qualified Employee Stock Purchase
Plan.
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(2)
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Plus
such additional shares as may be issued by reason of stock splits, stock
dividends or similar transactions.
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(3)
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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 June 11,
2008.
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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 900,000 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 1998 Employee Stock Purchase Plan and the Amended 1998 Non-Qualified
Employee Stock Purchase Plan (the "Plans"). On June 11, 1998, the Company filed
with the Commission a Registration Statement on Form S-8 (Registration No.
333-56571) registering up to 200,000 shares of Common Stock issuable under the
Plans (the "Initial Registration Statement"). On October 1, 2004, the Company
filed with the Commission a Registration Statement on Form S-8 (Registration No.
333-119463) registering up to 1,100,000 additional shares of Common Stock
issuable under the Plans. On June 12, 2007, the Company filed with
the Commission a Registration Statement on Form S-8 (Registration No.
333-143671) registering up to 800,000 additional shares of Common Stock issuable
under the Plans (such registration statements, together with the Initial
Registration Statement, being hereinafter referred to as the “Prior Registration
Statements”). With the addition of 900,000 shares pursuant to this Registration
Statement, the total number of shares now registered for issuance pursuant to
the Plans is 3,000,000. 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:
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a)
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The
Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 2007 filed with the SEC on March 17,
2008;
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b)
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The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2008 filed with the SEC on May 9,
2008;
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c)
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The
Registrant’s Current Reports on Form 8-K filed on January 7, 2008, January
8, 2008, January 10, 2008, January 15, 2008, March 12, 2008, April 1,
2008, April 25, 2008, May 23, 2008, May 29, 2008, and June 11, 2008;
and
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d)
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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.
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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.
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, 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.
Item
7. Exemption from Registration Claimed.
Item
8. Exhibits.
The
following documents are filed as Exhibits hereto:
Exhibit
Number
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Description
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5.1
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Opinion
and Consent of Mark R. Baker, Senior Vice President and General Counsel of
Progenics Pharmaceuticals, Inc. with respect to the legality of the
securities being registered
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Filed
herewith
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10.1
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Amended
1998 Employee Stock Purchase Plan
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Filed
herewith
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10.2
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Amended
1998 Non-Qualified Employee Stock Purchase Plan
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Filed
herewith
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23.1
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Consent
of Mark R. Baker, Senior Vice President and General Counsel, Progenics
Pharmaceuticals, Inc. (contained in his opinion filed herewith as Exhibit
5.1)
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Filed
herewith
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23.2
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Consent
of PricewaterhouseCoopers LLP
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Filed
herewith
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24.1
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Power
of Attorney of directors and certain officers of the Company (included in
Signature Page)
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Filed
herewith
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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,
(1) That paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-8, 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.
(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.
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-8 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 June 17,
2008.
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PROGENICS
PHARMACEUTICALS, INC.
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By:
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/s/ PAUL J. MADDON,
M.D., PH.D.
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Paul
J. Maddon, M.D., Ph.D.
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Chief
Executive Officer and Chief Science
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. and Robert A. McKinney, and
each of them, 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 (including
post-effective amendments) to this Registration Statement (or any other
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933), 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 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
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Capacity
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Date
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/s/ KURT W.
BRINER
Kurt
W. Briner
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Co-Chairman
of the Board
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June
17, 2008
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/s/ PAUL F.
JACOBSON
Paul
F. Jacobson
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Co-Chairman
of the Board
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June
17, 2008
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/s/ PAUL J. MADDON,
M.D., PH.D.
Paul
J. Maddon, M.D., Ph.D.
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Chief
Executive Officer and Chief Science Officer (Principal Executive
Officer)
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June
17, 2008
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/s/ ROBERT A.
MCKINNEY
Robert
A. McKinney
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Chief
Financial Officer, Senior Vice President, Finance & Operations and
Treasurer (Principal Financial and Accounting Officer)
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June
17, 2008
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/s/ CHARLES A.
BAKER
Charles
A. Baker
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Director
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June
17, 2008
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/s/ MARK F.
DALTON
Mark
F. Dalton
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Director
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June
17, 2008
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/s/ STEPHEN P. GOFF,
Ph.D.
Stephen
P. Goff, Ph.D.
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Director
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June
17, 2008
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/s/ DAVID A.
SCHEINBERG, M.D., PH.D.
David
A. Scheinberg, M.D., Ph.D.
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Director
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June
17, 2008
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/s/ NICOLE S.
WILLIAMS
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Director
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June
17, 2008
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Nicole
S. Williams
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