AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 15, 2004
REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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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)
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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)
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TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE:
(914) 789-2800
CALCULATION OF REGISTRATION FEE
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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.
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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
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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)
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;
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(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.
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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.
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Paul J. Maddon, M.D., Ph.D.
Chairman of the Board and Chief Executive Officer
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
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/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
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Charles A. Baker
/s/ KURT W. BRINER Director September 30, 2004
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Kurt W. Briner
/s/ MARK F. DALTON Director September 30, 2004
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Mark F. Dalton
/s/ STEPHEN P. GOFF, PH.D. Director September 30, 2004
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Stephen P. Goff, Ph.D.
/s/ PAUL F. JACOBSON Director September 30, 2004
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Paul F. Jacobson
/s/ RONALD J. PRENTKI President and Director September 30, 2004
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Ronald J. Prentki
/s/ DAVID A. SCHEINBERG, M.D., PH.D. Director September 30, 2004
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David A. Scheinberg, M.D., Ph.D.
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