Payment
of Filing Fee (Check the appropriate box):
|
||
x
|
No
fee required.
|
|
o
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(2) and
0-11.
|
|
(1)
|
Title
of each class of securities to which transaction
applies:
|
|
(2)
|
Aggregate
number of securities to which transaction applies:
|
|
(3)
|
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act
|
|
Rule
0-11 (set forth the amount on which the filing fee is calculated and state
how it was determined):
|
||
(4)
|
Proposed
maximum aggregate value of transaction:
|
|
(5)
|
Total
fee paid:
|
|
o
|
Fee
paid previously with preliminary materials.
|
|
o
|
Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
|
|
(1)
|
Amount
Previously Paid:
|
|
(2)
|
Form,
Schedule or Registration Statement No.:
|
|
(3)
|
Filing
Party:
|
|
(4)
|
Date
Filed:
|
|
1.
|
The
election of eight directors to serve until the next Annual Meeting of
Stockholders and until their successors are elected and
qualified.
|
|
2.
|
The
approval of amendments to our 1998 Employee Stock Purchase Plan and 1998
Non-Qualified Employee Stock Purchase Plan to increase the number of
shares of common stock reserved for issuance thereunder to 3,400,000 and
1,100,000, respectively, and to make certain other changes to the terms of
the Plans.
|
|
3.
|
The
approval of an amendment to our 2005 Stock Incentive Plan to increase the
number of shares of common stock reserved for issuance thereunder to
5,450,000, and to make certain other changes to the terms of the
Plan.
|
|
4.
|
The
ratification of the selection of PricewaterhouseCoopers LLP to serve as
our independent registered public accounting firm for
2009.
|
|
5.
|
The
transaction of such other business as may properly come before the Meeting
and any adjournment thereof.
|
|
1
|
|
2
|
|
5
|
|
8
|
|
15
|
|
17
|
|
20
|
|
20
|
26
|
|
27
|
|
28
|
|
29
|
|
29
|
|
31
|
|
33
|
|
34
|
|
|
34
|
|
36
|
|
39
|
|
42
|
|
42
|
|
42
|
|
44
|
|
44
|
|
44
|
|
45
|
|
45
|
|
45
|
|
A-1
|
|
B-1
|
|
C-1
|
Name
|
Age
|
Year
First
Elected Director
|
Position
with Company
|
||
Kurt
W.
Briner
|
64
|
1998
|
Chairman
and Director
|
||
Charles
A. Baker, J.D.
(1)(2)(3)
|
76
|
1994
|
Director
|
||
Peter
J. Crowley, M.B.A.
(1)
|
50
|
2009
|
Director
|
||
Mark
F. Dalton, J.D.
(2)(3)
|
58
|
1990
|
Director
|
||
Stephen
P. Goff, Ph.D.
(2)
|
57
|
1993
|
Director
|
||
Paul
J. Maddon, M.D.,
Ph.D.
|
49
|
1986
|
Chief
Executive Officer, Chief
Science
Officer and Director
|
||
David
A. Scheinberg, M.D., Ph.D.
|
53
|
1996
|
Director
|
||
Nicole
S. Williams, M.B.A.
(1)
|
64
|
2007
|
Director
|
Name
and Position
|
Gain from exercise under
Plans1
|
Number
of shares issued upon ESPP exercise
|
Number
of shares issued upon Non-Qualified ESPP exercise
|
|||||||||
Paul
J.
Maddon
|
— | — | — | |||||||||
Chief
Executive Officer2
|
||||||||||||
Robert
A.
McKinney
|
$ | 35,151 | 809 | 1,076 | ||||||||
Chief
Financial Officer3
|
||||||||||||
Mark
R. Baker3
|
$ | 45,400 | 809 | 1,510 | ||||||||
Thomas
A. Boyd3
|
$ | 54,132 | 809 | 1,894 | ||||||||
Robert
J. Israel3
|
$ | 41,709 | 809 | 1,381 | ||||||||
All
current executive officers as a group3
|
$ | 206,838 | 4,045 | 6,734 | ||||||||
All
current directors who are not executive officers as a group4
|
— | — | — | |||||||||
All
employees, including all current officers who are not executive officers
as a group5
|
$ | 2,513,130 | 533,779 | 119,911 |
(1)
|
The
exercise price range for the ESPP was $4.27 to $15.32 and for the
Non-Qualified ESPP was $6.07 to
$15.32.
|
(2)
|
As
the holder of a beneficial interest in more than five percent of common
stock in 2008, Dr. Maddon was not eligible to participate in either
Plan.
|
(3)
|
Gain
from exercise is the difference between (i) the fair market value on the
date of exercise of the shares issued upon exercise of the purchase rights
and (ii) the exercise price thereof. Share numbers are net of
shares surrendered in payment of exercise prices for, and applicable
withholding taxes in respect of, rights
exercised.
|
(4)
|
Non-employee
directors are not eligible to participate in the
Plans.
|
(5)
|
Gain
from exercise is the difference between (i) the fair market value on the
date of exercise of the shares issued upon exercise of the purchase rights
and (ii) the exercise price thereof. Share numbers are net of
shares surrendered in payment of exercise prices for, and, in the case of
employees who so elect, applicable withholding taxes in respect of, rights
exercised. Executive officers are not included in this
group.
|
(a)
Number
of shares
to
be issued upon exercise of outstanding options, warrants and
rights
|
(b)
Weighted
average exercise price of outstanding options, warrants and
rights
|
(c)
Number
of shares remaining available for future issuance (excluding securities
reflected in first column)
|
||||||||||
Equity
compensation plans approved by stockholders
|
4,366,031 | (1) | $ | 19.11 | 2,145,423 | (2) | ||||||
Equity
compensation plans not approved by stockholders (3)
|
85,143 | $ | 1.51 | — | ||||||||
Total
|
4,451,174 | $ | 18.78 | 2,145,423 |
(1)
|
Does
not include purchase rights issued under the ESPP or the Non-Qualified
ESPP.
|
(2)
|
Includes
735,741 and 294,595 shares available for issuance under the ESPP and
Non-Qualified ESPP, respectively.
|
(3)
|
Consists
only of our 1989 Non-Qualified Stock Option
Plan.
|
Type of Fee
|
2008
|
2007
|
||||||
Audit
Fees
(1)
|
$ | 559,992 | $ | 601,161 | ||||
Tax
Fees
(2)
|
39,900 | 59,500 | ||||||
All
Other Fees
(3)
|
1,611 | 1,611 |
(1)
|
Consists
of fees billed or expected to be billed by PWC in connection with (i) the
audit of our annual financial statements, including attestation services
required under section 404 of the Sarbanes-Oxley Act of 2002, and reviews
of our quarterly interim financial statements, totaling $547,700 in 2008
and $535,026 in 2007, (ii) filing of registration statements with the SEC,
totaling $5,000 in 2008 and $57,500 in 2007, and (iii) statutory non-U.S.
audit fees of $7,292 for 2008 and $8,635 for
2007.
|
(2)
|
Consists
of fees billed or expected to be billed by PWC for (i) tax return
preparation totaling $35,000 in 2008 and $32,500 in 2007, and (ii) tax
advice of $4,900 for 2008 and tax consultation regarding Internal Revenue
Code section 382 analysis of $27,000 in
2007.
|
(3)
|
Consists
of fees paid to PWC for a proprietary internet-based subscription
service.
|
Name
|
Age
|
Position
|
|
Paul
J. Maddon, M.D.,
Ph.D.
|
49
|
Chief
Executive Officer, Chief Science Officer and Director
|
|
Mark
R. Baker,
J.D.
|
54
|
Executive
Vice President-Corporate, General
Counsel
and Secretary
|
|
Robert
A. McKinney,
CPA
|
52
|
Chief
Financial Officer, Senior Vice President,
Finance
& Operations and Treasurer
|
|
Thomas
A. Boyd,
Ph.D.
|
57
|
Senior
Vice President, Product Development
|
|
Robert
J. Israel,
M.D.
|
52
|
Senior
Vice President, Medical Affairs
|
|
William
C. Olson,
Ph.D.
|
46
|
Senior
Vice President, Research & Development
|
|
Benedict
Osorio, M.S., M.B.A.
|
52
|
Senior
Vice President, Quality
|
|
Nitya
G. Ray,
Ph.D.
|
56
|
Senior
Vice President, Manufacturing
|
|
Ann
Marie Assumma,
M.S.
|
55
|
Vice
President, Regulatory
|
|
Walter
M. Capone,
M.B.A.
|
44
|
Vice
President, Commercial Development and
Operations
|
|
Richard
W. Krawiec,
Ph.D.
|
61
|
Vice
President, Corporate Affairs
|
|
Tage
Ramakrishna,
M.D.
|
34
|
Vice
President, Clinical Research
|
·
|
Attract
and retain those executives critical to our overall
success;
|
·
|
Reward
executives for contributions to achievement of strategic goals which
enhance stockholder value;
|
·
|
Foster
and maintain a company culture of ownership, creativity and innovation;
and
|
·
|
Motivate
our NEOs to achieve critical financial, product and development milestones
(long- and short-term) set by the Board and
management.
|
Acorda
Therapeutics, Inc.
|
Myriad
Genetics, Inc.
|
Alexion
Pharmaceuticals, Inc.
|
Neurocrine
Biosciences, Inc.
|
Exelixis,
Inc.
|
Nuvelo,
Inc.
|
Human
Genome Sciences, Inc.
|
Regeneron
Pharmaceuticals, Inc.
|
Idenix
Pharmaceuticals, Inc.
|
Telik,
Inc.
|
Intermune,
Inc.
|
Theravance,
Inc.
|
Medarex,
Inc.
|
Zymogenetics
Inc.
|
Name
and Principal Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards1
($)
|
Option
Awards1
($)
|
All
Other Compen-
sation2
($)
|
Total
($)
|
Paul
J. Maddon
|
2008
|
618,000
|
330,0003
|
779,610
|
1,374,410
|
17,228
|
3,119,248
|
Chief
Executive Officer
|
2007
|
600,000
|
-
|
738,848
|
1,779,997
|
16,806
|
3,135,6517
|
2006
|
565,000
|
350,0003
|
384,306
|
2,850,421
|
16,306
|
4,166,0337
|
|
Robert
A. McKinney
|
2008
|
290,000
|
88,0004
|
184,702
|
415,874
|
28,752
|
1,007,328
|
Chief
Financial Officer
|
2007
|
270,000
|
110,0004
|
143,762
|
352,506
|
25,923
|
902,191
|
2006
|
250,000
|
100,0004
|
80,607
|
334,053
|
25,423
|
790,083
|
|
Mark
R. Baker
|
2008
|
385,000
|
160,0004
|
122,067
|
825,197
|
20,500
|
1,512,764
|
Executive
Vice President-
|
2007
|
325,000
|
200,0004
|
88,185
|
650,729
|
20,500
|
1,284,414
|
Corporate
|
2006
|
300,000
|
200,0004
|
24,949
|
519,975
|
20,000
|
1,064,924
|
Thomas
A. Boyd
|
2008
|
290,000
|
155,0004,5
|
59,3166
|
445,765
|
25,979
|
976,060
|
Senior
Vice President
|
2007
|
270,000
|
220,0004,5
|
170,2526
|
391,650
|
26,161
|
1,078,063
|
2006
|
250,000
|
125,0004
|
166,166
|
492,274
|
25,516
|
1,058,956
|
|
Robert
J. Israel
|
2008
|
355,000
|
80,0004
|
143,468
|
238,693
|
29,167
|
846,328
|
Senior
Vice President
|
|||||||
(1)
|
Amount
of compensation for each NEO reflects the expense recognized by the
Company for financial statement reporting purposes for the year presented,
in accordance with FAS 123R, in respect of awards made in the year
presented and prior years. The assumptions used in calculating
the expense amounts are set forth in our Annual Reports on Form 10-K for
the relevant years. “Option Awards” column includes
compensation derived from our ESPP and Non-Qualified ESPP
Plans.
|
(2)
|
Includes
the amount of the Company’s matching contribution under our 401(k) Plan
and reimbursement of premiums for enhanced life and disability insurance
made to or on behalf of our NEOs.
|
(3)
|
Dr.
Maddon elected to receive the 2008 bonus award in the form of 66,294
shares of restricted stock rather than $330,000 cash, of which 29,464
shares vested on March 17, 2009, the date of grant, with the balance of
36,830 vesting six months later. The total value of the award
was $371,246, based on 66,294 shares at a per-share value of $5.60, the
fair market value of our common stock on the date of grant. The $41,246
incremental cost will be reported in the Summary Compensation Table of our
2010 Proxy Statement as compensation expense for 2009, when the restricted
shares are scheduled to vest. Dr. Maddon elected to receive the
2006 bonus award in the form of 15,957 shares of restricted stock rather
than $350,000 cash. The total value of the award was $481,263, based on
15,957 shares at a per-share value of $30.16, the fair market value of our
common stock on February 20, 2007, the date of grant. All shares
awarded for the 2006 bonus have vested and compensation expense has been
recorded in accordance with FAS 123R. Dr. Maddon did not
receive a bonus in 2007.
|
(4)
|
Includes
a performance-based discretionary cash bonus approved by the
Committee.
|
(5)
|
2008
amount includes a discretionary cash bonus of $88,000 and a
milestone-based cash bonus of $67,000 paid upon approval by the FDA of the
Company’s NDA for RELISTOR in 2008 (see our CD&A above under the
heading “Elements of Compensation-Long-term
incentives”). 2007 amount includes a discretionary cash
bonus of $110,000 and an additional bonus of the same amount paid upon
filing of the RELISTOR NDA.
|
(6)
|
Includes
a reduction of $127,800 in each of 2007 and 2008 in respect of two 2006
grants of 5,000 restricted shares each which were subject to subsequent
milestone-based vesting which did not occur and were
forfeited.
|
(7)
|
Amounts
differ from those previously reported. In our 2008 Proxy
Statement, Dr. Maddon’s compensation was reported to be $381,911 higher
for 2007 and $438,006 higher for 2006 than in the presentation
above. For all years, however, the actual compensation received
by Dr. Maddon as reported in the 2008 Proxy Statement and in this document
remains the same. In the presentation
above:
|
|
(i)
|
vesting
of portions of Dr. Maddon’s bonus compensation is reported beginning in
the year preceding the award (in respect of which the bonus was awarded),
rather than beginning in the year the bonus was
awarded;
|
(ii)
|
recognition
of the fair market value of incremental costs of his bonus awards is
reported in the “Stock Awards” column rather than under
“Bonus;”
|
(iii)
|
the
amount of his 2006 bonus (awarded in 2007) is reported as compensation for
2006 rather than 2007, and the initial vested portion of his 2005 bonus
(awarded in 2006) is not included in 2006 bonus compensation (the 2008
Proxy Statement reported the 2005 bonus portion in both the “Bonus” and
“Stock Awards” columns, without a compensating reduction of the “Total”
column); and
|
(iv)
|
compensation
derived from our Non-Qualified ESPP is reported in the “Option Awards”
column.
|
Name
|
Grant
Date
|
Estimated
Future Payouts Under Equity Incentive Plan Awards (#)1
|
All
Other Stock Awards: Number of Shares of Stock or Units
(#)
|
All
Other Option Awards: Number of Securities Underlying Options
(#)
|
Exercise
or Base Price of Option Awards ($/Share)
|
Grant
Date Fair Value of Stock and Option Awards ($)
|
Paul
J. Maddon
|
7/1/2008
|
25,0002
|
197,250
|
|||
7/1/2008
|
75,0002
|
16.05
|
513,000
|
|||
Robert
A. McKinney
|
7/1/2008
|
8,3333
|
133,745
|
|||
7/1/2008
|
25,0004
|
16.05
|
277,223
|
|||
|
||||||
Mark
R. Baker
|
7/1/2008
|
60,0004
|
16.05
|
665,334
|
||
Thomas
A. Boyd
|
7/1/2008
|
6,6673
|
107,005
|
|||
7/1/2008
|
20,0004
|
16.05
|
221,778
|
|||
Robert
J. Israel
|
7/1/2008
|
6,6673
|
107,005
|
|||
7/1/2008
|
20,0004
|
16.05
|
221,778
|
(1)
|
Awards
reported in this column are limited to performance-based equity awards;
other equity awards are reported in following
columns.
|
(2)
|
Restricted
stock awards and stock options vest in defined percentages upon
achievement of specified performance or market-based milestones; not
subject to cliff vesting.
|
(3)
|
Restricted
stock awards vest 33.3% per year, with vesting dates of June 20, 2009,
2010 and 2011.
|
(4)
|
Stock
options vest 33.3% per year with vesting dates of July 1, 2009, 2010 and
2011.
|
Option
Awards
|
Stock
Awards
|
||||||||
Name
|
Number
of
Securities
Underlying Unexercised Options
(#)
Exercisable
|
Number
of Securities Underlying Unexercised Options
(#)
Unexercisable
|
Equity
Incentive Plan Awards: Number of Securities Underlying Unexercised
Unearned Options
(#)
|
Option
Exercise Price
($)
|
Option
Expiration Date
|
Number
of Shares or Units of Stock That Have Not Vested
(#)1
|
Market
Value of Shares or Units of Stock That Have Not Vested
($)
|
Equity
Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights
That Have Not Vested
(#)
|
Equity
Incentive Plan Payout Value of Unearned Shares, Units or Other Rights That
Have Not Vested
($)2
|
Paul
J.
Maddon
|
0
101,250
79,750
75,000
|
75,000(3)
11,250(4)
65,250(5)
|
16.05
22.01
24.26
21.39
|
7/1/2018
7/2/2017
7/3/2016
7/1/2015
|
|||||
35,625
37,500
112,500
112,500
75,000
|
1,875(6)
|
16.85
16.85
15.06
15.06
12.29
|
7/1/2014
7/1/2014
7/1/2013
7/1/2013
7/1/2012
|
||||||
33,000
|
12.29
|
7/1/2012
|
|||||||
58,543
|
603,578
|
25,000
|
257,750
|
||||||
Robert
A.
McKinney
|
0
2,500
12,500
9,375
18,750
25,000
25,000
|
25,000(7)
7,500(8)
12,500(9)
3,125(10)
6,250(11)
|
16.05
22.01
24.26
21.39
22.68
15.06
12.29
|
7/1/2018
7/2/2017
7/3/2016
7/1/2015
3/1/2015
7/1/2013
7/1/2012
|
|||||
25,000
|
17.19
|
12/27/2011
|
|||||||
25,000
|
13.63
|
6/28/2010
|
|||||||
25,000
|
13.75
|
4/16/2009
|
|||||||
23,457
|
241,842
|
–
|
–
|
||||||
Mark
R. Baker
|
0
2,500
12,500
30,000
30,000
|
60,000(7)
7,500(8)
12,500(9)
30,000(12)
20,000(13)
|
16.05
22.01
24.26
27.71
20.02
|
7/1/2018
7/2/2017
7/3/2016
2/21/2016
6/20/2015
|
|||||
13,999
|
144,330
|
–
|
–
|
||||||
Thomas
A. Boyd
|
0
1,750
8,750
12,500
18,750
|
20,000(7)
5,250(8)
8,750(9)
12,500(12)
6,250(10)
|
16.05
22.01
24.26
27.71
21.39
|
7/1/2018
7/2/2017
7/3/2016
2/21/2016
7/1/2015
|
|||||
25,000
20,000
50,000
|
0
0
0
|
15.06
12.29
18.47
|
7/1/2013
7/1/2012
1/1/2012
|
||||||
18,791
|
193,735
|
–
|
–
|
||||||
Robert
J. Israel
|
0
1,750
8,750
|
20,000(7)
5,250(8)
8,750(9)
|
16.05
22.01
24.26
|
7/1/2018
7/2/2017
7/3/2016
|
|||||
7,500
35,000
25,000
25,000
25,000
24,000
|
2,500(10)
0
0
0
0
0
|
21.39
15.06
12.29
17.19
13.62
13.75
|
7/1/2015
7/1/2013
7/1/2012
12/27/2011
6/28/2010
4/16/2009
|
||||||
17,791
|
183,425
|
_____________________
|
(1)
|
Vest
in equal annual installments commencing one year from date of grant with
final vesting no later than June 20,
2011.
|
(2)
|
Based
on the closing price of our common stock on December 31, 2008 of
$10.31.
|
(3)
|
Performance
stock options vest in percentages upon achievement of milestones or share
price performance (see our CD&A above under the heading “Elements of
Compensation-Long-term
incentives” for a discussion of the performance
criteria).
|
(4)
|
Performance
options vested 90% through 2008 due to the achievement of specified
milestones; remaining 10% cliff vest on June 2,
2017.
|
(5)
|
Performance
options vested 55% through 2008 due to the achievement of specified
milestones; remaining 45% cliff vest on June 3,
2016.
|
(6)
|
Performance
options vested 95% through 2008 due to the achievement of specified
milestones; remaining 5% cliff vest on June 1, 2014 or earlier achievement
of milestones.
|
(7)
|
Stock
options vest equally at 33% in each of the three years beginning July 1,
2009.
|
(8)
|
Stock
options vested 25% through December 31, 2008; remaining vest on July 2,
2009, 2010 and 2011.
|
(9)
|
Stock
options vested 50% through December 31, 2008; remaining vest on July 3,
2009 and 2010.
|
(10)
|
Stock
options vested 75% through December 31, 2008; remaining vest on July 1,
2009.
|
(11)
|
Stock
options vested 75% through December 31, 2008; remaining vested on March 1,
2009.
|
(12)
|
Stock
options vested 50% through December 31, 2008; remaining vest on February
21, 2009 and 2010.
|
(13)
|
Stock
options vested 60% through December 31, 2008; remaining vest on June 20,
2009 and 2010.
|
Option
Awards
|
Stock
Awards
|
|||
Name
|
Number
of Shares Acquired on Exercise
(#)
|
Value
Realized on Exercise
($)
|
Number
of Shares Acquired on Vesting
(#)
|
Value
Realized on Vesting
($)
|
Paul
J.
Maddon
|
-
|
-
|
37,9481
|
657,639
|
Robert
A.
McKinney
|
-
|
-
|
8,334
|
144,428
|
Mark
R.
Baker
|
-
|
-
|
5,334
|
92,438
|
Thomas
A.
Boyd
|
-
|
-
|
7,709
|
133,597
|
Robert
J.
Israel
|
9,000
|
32,704
|
6,709
|
116,267
|
Cash
Severance
|
Equity
|
Benefits
Continuation8
($)
|
Gross
up of I.R.C. Golden Parachute Excise Tax Resulting from
Change-in-Control
($)
|
Total
($)
|
|||||
Base
Salary
|
Bonus5
|
||||||||
Circumstances
of Termination1
|
Multiple
|
($)
|
Multiple
|
($)
|
Value
of Vested Equity6
($)
|
Value
of Accelerated Unvested Equity7
($)
|
|||
Termination
by us for cause or voluntary termination
|
N/A
|
N/A
|
N/A
|
N/A
|
0
|
N/A
|
N/A
|
N/A
|
0
|
Death
or disability of named executive officer2
|
1.0
|
618,000
|
N/A
|
685,375
|
0
|
N/A
|
25,182
|
N/A
|
1,328,557
|
Termination
by us without cause or by the named executive officer with good
reason3
|
2.0
|
1,236,000
|
2.0
|
1,020,752
|
0
|
861,328
|
25,182
|
N/A
|
3,143,262
|
Termination
by us without cause or by the named executive officer with good reason
following a change in control4
|
3.0
|
1,854,000
|
3.0
|
1,356,128
|
0
|
861,328
|
37,773
|
N/A
|
4,109,229
|
(1)
|
Assumes
that the triggering event occurred on December 31, 2008, when the closing
price per share of our common stock was
$10.31.
|
(2)
|
In
this circumstance, Dr. Maddon or his estate receives a pro-rated amount of
bonus from the beginning of the year of termination to the date of
termination. In addition, he receives one times his base salary
for the year of termination and average bonus (calculated using the
average of the annual bonuses paid to him in the three years preceding the
year of termination). For purposes of this calculation, bonus
used to calculate pro-rated bonus is assumed to be
$350,000.
|
(3)
|
In
this circumstance, Dr. Maddon receives cash severance equal to twice the
sum of his base salary for the year of termination and the average of the
annual bonuses paid to him in the three years preceding the year of
termination, together with a prorated bonus from the beginning of the year
of termination to the date of termination. For purposes of this
calculation, base salary is $618,000, the fair market values of his
bonuses for the three years preceding 2008 are $525,000, $481,250 and $0
and the fair market value of his bonus for 2008 is
$371,246. Bonus used to calculate pro-rated bonus is assumed to
be $350,000.
|
(4)
|
In
this circumstance, Dr. Maddon receives cash severance equal to three times
the sum of his base salary for the year of termination and the average of
the annual bonuses paid to him in the three years preceding the year of
termination, together with a prorated bonus from the beginning of the year
of termination to the date of termination. Assumptions
specified in note (3) are used for purposes of this
calculation.
|
(5)
|
Includes
bonus multiple calculated using the multiple shown plus a pro-rated bonus
of $350,000 where any amount is shown, representing an estimated pro-rata
bonus for the year of termination as contemplated by employment
agreement.
|
(6)
|
All
of Dr. Maddon’s outstanding stock options were underwater as of December
31, 2008.
|
(7)
|
Assumes
(i) acceleration of vesting at December 31, 2008 of all 153,375
unexercisable and unearned stock options, as set forth in the Outstanding
Equity Awards at Fiscal Year-End table above, all
of which were underwater at December 31, 2008 and (ii) acceleration of
vesting of all 83,543 outstanding shares of restricted stock at December
31, 2008 and the sale of the stock on that date, yielding, before taxes,
$861,328, using the closing price of our common stock on December 31, 2008
of $10.31.
|
(8)
|
Health
and welfare benefits continue for 24 or 36 months, depending on the
circumstances of termination; includes the employer cost of health,
dental, disability and group life
insurance.
|
·
|
If
terminated by us for Cause or if he resigns without Good Reason (each as
defined), a pro-rated salary through his termination date (his unvested
equity compensation will be
forfeited).
|
·
|
If
his employment is terminated due to death or disability, (i) his salary
and a pro-rated bonus until his termination date, (ii) continued welfare
benefits for a period of two years, (iii) a lump sum payment equal to the
sum of his base salary and Average Bonus (defined as the average of the
bonuses paid to him in the three years preceding the year of termination),
(iv) vesting of all time-based equity and (v) vesting of all
milestone-based equity if the milestones are achieved under the original
vesting provisions.
|
·
|
If
terminated without Cause by us or if Dr. Maddon resigns for Good Reason,
(i) a pro-rated salary through his termination date, (ii) a lump sum equal
to twice his base salary and Average Bonus, (iii) continued welfare
benefits for two years and (iv) immediate vesting of all time-based and
performance-based equity.
|
·
|
If
terminated by us for Cause or if he resigns without Good Reason, a
pro-rated salary through his termination date (his unvested equity
compensation will be forfeited).
|
·
|
If
his employment is terminated due to death or disability, (i) his salary
and a pro-rated bonus until his termination date, (ii) continued welfare
benefits for a period of two years, (iii) a lump sum payment equal to the
sum of his base salary and Average Bonus, (iv) vesting of all time-based
equity and (v) vesting of all milestone-based equity if the milestones are
achieved under the original vesting
provisions.
|
·
|
If
terminated without Cause or if Dr. Maddon resigns for Good Reason during
the designated period before or after a Change-in-Control, (i) three times
his base salary and Average Bonus, (ii) continued welfare benefits for
three years, (iii) a pro-rata bonus for the year of termination, (iv)
immediate vesting of all time-based and performance-based equity and (v)
payment from the Company of a gross-up for any excise tax incurred under
sections 280G or 4999 of the Internal Revenue Code (unless reducing his
cash severance by ten percent will result in no tax being
incurred).
|
Cash
Severance
|
Equity
|
Benefits
Continuation1
($)
|
Gross
up of I.R.C. Golden Parachute Excise Tax Resulting from
Change-in-Control
($)
|
Total
($)
|
|||||
Base Salary1
|
Bonus
|
||||||||
Circumstances
of Termination
|
Multiple
|
($)
|
Multiple
|
($)
|
Value
of Vested Equity
($)
|
Value
of Accelerated Unvested Equity
($)
|
|||
Termination
by us for cause
|
N/A
|
N/A
|
N/A
|
N/A
|
0
|
0
|
0
|
N/A
|
0
|
Termination
by us without cause2
|
N/A
|
266,225
|
N/A
|
0
|
N/A
|
N/A
|
13,988
|
N/A
|
280,213
|
(1)
|
Assumes
salary and benefits as of December 31,
2008.
|
(2)
|
In
this circumstance, Dr. Israel receives nine months salary at his current
salary and benefits. If at any time during such severance
period Dr. Israel secures new employment, however, the severance and
benefits will cease.
|
Name1
|
Fees
Earned or Paid in Cash
($)
|
Option
Awards2
($)
|
All
Other Compensation3
($)
|
Total
($)
|
||||||||||||
Kurt
W.
Briner
|
40,000 | 277,223 | - | 317,223 | ||||||||||||
Paul
F.
Jacobson
|
40,000 | 277,223 | - | 317,223 | ||||||||||||
Charles
A.
Baker
|
17,500 | 110,889 | - | 128,389 | ||||||||||||
Mark
F.
Dalton
|
17,500 | 110,889 | - | 128,389 | ||||||||||||
Stephen
P.
Goff
|
15,000 | 110,889 | 30,000 | 155,889 | ||||||||||||
David
A.
Scheinberg
|
15,000 | 110,889 | 30,000 | 155,889 | ||||||||||||
Nicole
S.
Williams
|
25,000 | 219,335 | - | 244,335 |
(1)
|
Dr.
Maddon serves as a director but does not receive any additional
compensation for services provided in that
capacity.
|
(2)
|
At
December 31, 2008, the aggregate number of stock options outstanding for
each of our non-employee directors was as follows: Mr. Baker
92,500; Mr. Briner 167,500; Mr. Dalton 87,500; Dr. Goff 127,500; Mr.
Jacobson 157,500; Dr. Scheinberg 121,607; Ms. Williams
45,000. In general, the options granted to the non-employee
directors vested immediately on the date of grant and the amounts shown
represent the grant date fair value which is equal to the compensation
recognized for each director during the fiscal year under FAS
123R. The grant date fair value of the 2008 option awards
was determined using option pricing models with assumptions disclosed
in our Annual Reports on Form 10-K for the relevant
years.
|
(3)
|
Drs.
Goff and Scheinberg each received payment of $30,000 for services as
scientific advisors for the year
2008.
|
·
|
$2,000
for attendance at each Board (including same-day committee) meeting
($1,000 for attendance by telephone), and $500 for participation in each
telephonic Board meeting;
|
·
|
$1,000
for attendance at each committee meeting not in conjunction with a Board
meeting ($500 for telephonic
participation);
|
·
|
$500
for each committee meeting held on the day after a Board
meeting;
|
·
|
an
annual retainer fee of $15,000 for Board service, except for Mr. Briner
who is entitled to an annual retainer fee of $40,000 as described
above;
|
·
|
an
option to purchase 10,000 fully-vested shares of common
stock (except for Mr. Briner who is granted 25,000 shares)
granted annually on the first business day of July with an exercise price
equal to the fair market value as of the date of grant;
and
|
·
|
an
annual retainer fee of $10,000 for service as Audit Committee Chair
(currently Ms. Williams); $2,500 for service as Compensation
Committee Chair (currently Mr. Dalton) and $2,500 for service as
Nominating and Corporate Governance Committee Chair (currently Mr. Charles
Baker).
|
Shares
Beneficially Owned2
|
||
Name
and Address of Beneficial Owner1
|
Number
|
Percent
|
Federated
Investors, Inc.3
Federated
Investors Tower
Pittsburgh,
PA 15222
|
4,500,391
|
14.6%
|
Wellington
Management Company, LLP4
75
State Street
Boston,
MA 02109
|
4,017,754
|
13%
|
Sectoral
Asset Management Inc.5
2120-1000
Sherbrooke Street
West
Montreal, PQ H3A 3G4 Canada
|
3,923,325
|
12.7%
|
Paul Tudor Jones II6
1275
King Street
Greenwich,
CT 06831
|
2,888,513
|
9.4%
|
Entities
affiliated with Tudor Investment Corporation7
1275
King Street
Greenwich,
CT 06831
|
2,342,388
|
7.6%
|
Morgan
Stanley8
1585
Broadway
New
York , NY 10036
|
1,981,798
|
6.4%
|
Barclays
Global Investors, NA.9
45
Fremont Street
San
Francisco, CA 94105
|
1,626,901
|
5.3%
|
Charles
A. Baker10
|
113,981
|
*
|
Kurt
W. Briner11
|
220,500
|
*
|
Peter
J. Crowley12
|
-
|
*
|
Mark
F. Dalton13
|
2,524,888
|
8.2%
|
Stephen
P. Goff14
|
161,000
|
*
|
Paul
J. Maddon15
|
1,491,814
|
4.7%
|
David
A. Scheinberg16
|
167,789
|
*
|
Nicole
S. Williams17
|
30,000
|
*
|
Robert
A. McKinney18
|
213,605
|
*
|
Mark
R. Baker19
|
117,486
|
*
|
Thomas
A. Boyd20
|
181,340
|
*
|
Robert J. Israel21
|
193,360
|
*
|
William
C. Olson22
|
237,702
|
*
|
All
directors and executive officers as a group23
|
5,936,565
|
17.9%
|
(1)
|
If
not otherwise specified, the address of each beneficial owner is c/o
Progenics Pharmaceuticals, Inc., 777 Old Saw Mill River Road, Tarrytown,
New York 10591.
|
(2)
|
With respect to our directors and
executive officers, and except as indicated and pursuant to applicable
community property laws, each stockholder possesses sole voting and
investment power with respect to the shares of common stock
listed. The number of shares of common stock beneficially owned
includes the shares issuable pursuant to stock options to the extent
indicated in the notes to this table. Shares issuable upon
exercise of these options are deemed outstanding for computing the
percentage of beneficial ownership of the person holding the options but
are not deemed outstanding for computing the percentage of beneficial
ownership of any other person. None of the shares held
by our directors and
executive officers are pledged as
collateral.
|
(3)
|
Based
on a Schedule 13G, filed February 10, 2009, (i) all shares are owned by
Federated Investors, Inc. (“Parent”), the parent holding company of
Federated Equity Management Company of Pennsylvania and Federated Global
Investment Management Corp., (ii) all of Parent’s outstanding voting stock
is held in the Voting Shares Irrevocable Trust for which John F. Donahue,
Rhodora J. Donahue and J. Christopher Donahue act as trustees, and (iii)
they have the collective voting control over the
Parent.
|
(4)
|
Based
on a Schedule 13G, filed on February 17, 2009, Wellington Management
Company, LLP has shared voting power over 3,445,873 shares and shared
dispositive power over 3,990,954
shares.
|
(5)
|
Based
on a Schedule 13G filed on February 10, 2009, (i) Sectoral Asset
Management Inc. in its capacity as an investment adviser has the sole
right to vote 3,356,425 shares and to dispose of the 3,923,325 shares
reported, (ii) Jerome G. Pfund and Michael L. Sjostrom are shareholders of
Sectoral Asset Management Inc. and (iii) Pictet Funds-BIOTECH, a Luxemburg
investment company beneficially owns 9.4% of the shares
reported. Based on a Schedule 13G filed on January 12, 2009,
Pictet Funds Biotech is the beneficial owner of 2,870,811 shares
(9.43%).
|
(6)
|
Includes
2,888,513 shares beneficially owned by entities affiliated with Tudor
Investment Corporation (TIC). Mr. Jones is the Chairman
and principal equity owner of TIC, and the indirect principal equity owner
of Tudor Arbitrage Partners L.P. (TAP), Tudor Proprietary Trading, L.L.C.
(TPT) and Tudor Global Trading LLC (TGT). Mr. Jones may be
deemed to be the beneficial owner of shares beneficially owned, or deemed
beneficially owned, by entities affiliated with
TIC. Mr. Jones disclaims beneficial ownership of such
shares. See
Note (7).
|
(7)
|
The
number of shares owned by entities affiliated with TIC consists of
1,820,068 shares held of record by The Tudor BVI Portfolio L.P., a limited
partnership organized under the law of the Cayman Islands (Tudor BVI),
287,813 shares held of record by TIC, 193,126 shares held of record by
TAP, 25,981 shares held of record by TPT, and 15,400 shares held of record
by TGT. In addition, because TIC provides investment advisory
services to Tudor BVI, it may be deemed to beneficially own the shares
held by such entity. TIC disclaims beneficial ownership of such
shares. TGT is the general partner of TAP. Tudor
Group Holdings LLC (TGH) is the sole member of TGT and indirectly holds
all of the membership interests of TPT. TGH is also the sole
limited partner of TAP. TGH expressly disclaims beneficial
ownership of the shares beneficially owned by each of such
entities. TGT disclaims beneficial ownership of shares held by
TAP. The number set forth does not include shares owned of
record by Mr. Jones and Mr. Dalton. See Notes (6) and
(13).
|
(8)
|
Based
on a Schedule 13G filed on February 16, 2009, 1,981,798 shares are held by
Morgan Stanley and Frontpoint Partners, LLC, which share voting and
dispositive powers.
|
(9)
|
Based
on a Schedule 13G, filed on February 6, 2009, Barclays Global Investors,
NA. has sole voting power over 554,224 shares, and Barclays Global Fund
Advisors owns 972,006 shares over which it has sole voting and dispositive
powers.
|
(10)
|
Includes
21,481 shares owned by the Baker Family Limited Partnership and 92,500
shares issuable upon exercise of options held by Mr. Baker and exercisable
within 60 days of March 31, 2009.
|
(11)
|
Includes
53,000 shares outstanding and 167,500 shares issuable upon exercise of
options exercisable within 60 days of March 31,
2009.
|
(12)
|
Upon
his appointment to the Board of Directors, Mr. Crowley was granted 25,000
stock options, none of which are exercisable within 60 days of March 31,
2009.
|
(13)
|
Includes
78,500 shares held of record directly by Mr. Dalton, 87,500 shares
issuable upon exercise of options held by Mr. Dalton exercisable
within 60 days of March 31, 2009 and 16,500 shares held of record by DF
Partners, a family partnership of which Mr. Dalton is the sole
general partner. The number set forth also includes 2,342,388
shares beneficially owned by entities affiliated with TIC. Mr.
Dalton is Vice Chairman and President and an equity owner of TIC and
TGH. Mr. Dalton is also the Vice Chairman and President and an
indirect equity owner of TGT and TPT. Mr. Dalton disclaims
beneficial ownership of shares beneficially owned, or deemed beneficially
owned, by entities affiliated with TIC and DF Partners, except to the
extent of his pecuniary interest therein. See Note
(7).
|
(14)
|
Includes
33,500 shares outstanding and 127,500 shares issuable upon exercise of
options exercisable within 60 days of March 31,
2009.
|
(15)
|
Includes
(i) 665,069 shares outstanding; (ii) 662,125 shares issuable upon exercise
of options exercisable within 60 days of March 31, 2009, (iii) 120,373
shares of restricted stock and (iv) 44,247 shares held by Dr. Maddon’s
spouse, the beneficial ownership of which Dr. Maddon
disclaims.
|
(16)
|
Includes
41,681 shares outstanding and 121,607 shares issuable upon exercise of
options exercisable within 60 days of March 31, 2009 and 4,501 shares of
restricted stock.
|
(17)
|
Includes
30,000 shares issuable upon exercise of options exercisable within 60 days
of March 31, 2009.
|
(18)
|
Includes
15,773 shares outstanding, 174,375 shares issuable upon exercise of
options exercisable within 60 days of March 31, 2009 and 23,457 shares of
restricted stock.
|
(19)
|
Includes
13,487 shares outstanding, 90,000 shares issuable upon exercise of options
exercisable within 60 days of March 31, 2009 and 13,999 shares of
restricted stock.
|
(20)
|
Includes
19,549 shares outstanding, 143,000 shares issuable upon exercise of
options exercisable within 60 days of March 31, 2009 and 18,791 shares of
restricted stock.
|
(21)
|
Includes
23,569 shares outstanding, 152,000 shares issuable upon exercise of
options exercisable within 60 days of March 31, 2009 and 17,791 shares of
restricted stock.
|
(22)
|
Includes
19,786 shares outstanding, 199,875 shares issuable upon exercise of
options exercisable within 60 days of March 31, 2009 and 18,041 shares of
restricted stock.
|
(23)
|
Includes
3,514,130 shares outstanding, 216,953 shares of restricted stock and
2,205,482 shares issuable upon the exercise of stock options exercisable
within 60 days of March 31, 2008 held by directors, NEOs and all other
executive officers of the Company.
|
·
|
Each
candidate shall be prepared to represent the best interests of all of our
stockholders and not just one particular
constituency.
|
·
|
Each
candidate shall be an individual who has demonstrated integrity and ethics
in his or her personal and professional life and has established a record
of professional accomplishment in his or her chosen
field.
|
·
|
No
candidate, or family member (as defined in the Nasdaq Marketplace rules)
or affiliate or associate (each as defined in Rule 405 under the
Securities Act of 1933, as amended) of a candidate, shall have any
material personal, financial or professional interest in any of our
present or potential competitors.
|
·
|
Each
candidate shall be prepared to participate fully in Board activities,
including, if eligible, active membership on at least one Board committee
and attendance at, and active participation in, meetings of the Board and
any committee of which he or she is a member, and not have other personal
or professional commitments that would, in the Nominating and Corporate
Governance Committee’s sole judgment, interfere with or limit his or her
ability to do so.
|
·
|
Each
candidate should contribute to the Board’s overall diversity — diversity
being broadly construed to mean a variety of opinions, perspectives,
personal and professional experiences and backgrounds, as well as other
differentiating characteristics.
|
·
|
Each
candidate should contribute positively to the collaborative culture among
Board members.
|
·
|
Each
candidate should possess professional and personal experiences and
expertise relevant to our goal of being a leading biopharmaceutical
company. At this stage of our development, relevant experiences
might include, among other things, large biotechnology or pharmaceutical
company CEO or senior management experience, senior-level management
experience in medical research or clinical development activities in the
fields of oncology, virology, immunology or molecular biology within a
public company or large university setting, and relevant senior-level
expertise in one or more of the following areas: finance, accounting,
sales and marketing, organizational development and public
relations.
|
1.
|
PURPOSE
|
2.
|
STOCK
SUBJECT TO THE
PLAN
|
3.
|
ADMINISTRATION
|
4.
|
ELIGIBILITY
|
5.
|
OPTION
GRANTS
|
(a)
|
Option
Term. The term of each option shall be from the Date of
Grant to the date six months after the Date of Grant (the “Date of
Expiration”).
|
(b)
|
Option
Price. The purchase price per share for each option (the
“Option Price”) shall be the lesser of (i) the fair market value of
the Common Stock on the Date of Grant or (ii) 85% of the fair market value
of the Common Stock on the Date of Exercise (as such term is defined
below). As used herein, the fair market value of the Common
Stock on the Date of Grant shall be the closing price of the Common Stock
on the Nasdaq National Market on the date prior to the Date of Grant and
the fair market value of the Common Stock on the Date of Exercise shall be
the closing price of the Common Stock on the Nasdaq National Market on the
Date of Exercise provided, however, that, if the employee exercising the
option resells the shares on the Date of Exercise, the average selling
price for such shares, before the payment of brokerage commissions and
expenses, shall be the fair market value on the Date of
Exercise. In the event the Common Stock ceases at any time to
be traded on the Nasdaq National Market, the fair market value of the
Common Stock shall be determined in such manner as may be set by the
Committee.
|
(c)
|
Number of Option Shares.
Unless and until the Committee in its sole discretion determines
otherwise, the number of shares subject to each option shall be the whole
number equal to (i) up to 25% of each employee’s total
compensation during the fiscal quarter starting with the Date of Grant, as
such percentage shall be determined by the Committee prior to the Date of
Grant, divided by (ii) the lesser of the fair market value of the
Common Stock on the Date of Grant or 85% of the closing price of the
Common Stock on the Nasdaq National Market on the date prior to the Date
of Exercise (or such other manner for determining the fair market value of
the Common Stock on such date if not then traded on the Nasdaq National
Market). In no event, however, shall the number of shares
subject to any option exceed $6,250 divided by the fair market value of
the Common Stock on the Date of
Grant.
|
(d)
|
Exercise. The
date of exercise of each option (the “Date of Exercise”) shall be the
date or dates specified by the Committee in writing prior to the Date of
Grant of an option that occurs during the three-month period starting with
the date three months after the Date of Grant of the option and ending on
the Date of Expiration of the option. Exercise shall not be
made with respect to less than the total number of shares subject to each
option and shall be effected by delivering to the Company written notice
of exercise at least one day prior to the Date of
Exercise.
|
(e)
|
Payment. Payment
for the shares purchased upon exercise of each option (including the
amount, if any, necessary to satisfy federal, state or local income tax
withholding requirements) shall be in cash within five business days
following the Date of Exercise and, in the event payment is not received,
the Company may withhold the shares and cancel the
option. Notwithstanding the foregoing, the Committee may in its
sole discretion permit employees (i) to pay for shares acquired upon
exercise of options by delivering shares of the Common Stock owned by such
employee or (ii) to forgo payment for the shares and receive instead
the net number of shares that would be received if such employee borrowed
shares of the Common Stock for payment of the purchase price and returned
the borrowed shares from the shares acquired upon exercise of the
option.
|
(f)
|
Termination of
Employment. In the event an employee’s employment with
the Company terminates for any reason other than the employee’s death, any
option held by such employee shall forthwith terminate without any further
rights on the part of the employee. In the event of an
employee’s death, the employee’s estate, legal representative or
beneficiary may exercise any option held by such employee at any time
prior to the Date of Expiration with respect to such
option. Nothing herein shall be deemed to confer any right of
continued employment with the Company or to limit the right of the Company
to terminate employment with any
employee.
|
6.
|
RIGHTS
AS A STOCKHOLDER
|
7.
|
NONTRANSFERABILITY
OF THE OPTION
|
8.
|
COMPLIANCE
WITH SECURITIES LAWS
|
9.
|
CHANGE
OF CONTROL
|
10.
|
STOCK
ADJUSTMENTS
|
(a)
|
In
the event of a stock dividend, stock split, recapitalization, merger in
which the Company is the surviving corporation or other capital adjustment
affecting the outstanding shares of the Common Stock, an appropriate
adjustment shall be made, as determined by the Board of Directors of the
Company, to the number of shares subject to the Plan and the exercise
price per share with respect to any option granted under the
Plan.
|
(b)
|
In
the event of the complete liquidation of the Company or of a
reorganization, consolidation or merger in which the Company is not the
surviving corporation, any option granted under the Plan shall continue in
full force and effect unless either (i) the Board of Directors of the
Company modifies such option so that it is fully exercisable with respect
to the number of shares measured by the then current compensation prior to
the effective date of such transaction or (ii) the surviving
corporation issues or assumes a stock option contemplated by
Section 424(a) of the Code.
|
11.
|
EFFECTIVENESS
OF THE PLAN
|
12.
|
AMENDMENT
OF THE PLAN
|
1.
|
PURPOSE
|
2.
|
STOCK
SUBJECT TO THE PLAN
|
3.
|
ADMINISTRATION
|
4.
|
ELIGIBILITY
|
5.
|
OPTION
GRANTS
|
(a)
|
Option
Term. The term of each option shall be from the Date of
Grant to the date six months after the Date of Grant (the “Date of
Expiration”).
|
(b)
|
Option
Price. The purchase price per share for each (the
“Option Price”) shall be the lesser of (i) the fair market value of
the Common Stock on the Date of Grant or (ii) 85% of the fair market value
of the Common Stock on the Date of Exercise (as such term is defined
below). As used herein, the fair market value of the Common
Stock on the Date of Grant shall be the closing price of the Common Stock
on the Nasdaq National Market on the date prior to the Date of Grant and
the fair market value of the Common Stock on the Date of Exercise shall be
the closing price of the Common Stock on the Nasdaq National Market on the
Date of Exercise provided, however, that, if the employee exercising the
option resells the shares on the Date of Exercise, the average selling
price for such shares, before the payment of brokerage commissions and
expenses, shall be the fair market value on the Date of
Exercise. In the event the Common Stock ceases at any time to
be traded on the Nasdaq National Market, the fair market value of the
Common Stock shall be determined in such manner as may be set by the
Committee.
|
(c)
|
Number of Option
Shares. Unless and until the Committee in its sole
discretion determines otherwise, the number of shares subject to each
option shall be the whole number equal to (i) up to 25% of each
employee’s total compensation during the fiscal quarter starting with the
Date of Grant, as percentage shall be determined by the Committee prior to
the Date of Grant, divided by (ii) the lesser of the fair market
value of the Common Stock on the Date of Grant or 85% of the closing
price of the Common Stock on the Nasdaq National Market on the date prior
to the Date of Exercise (or such other manner for determining the fair
market value of the Common Stock on such date if not then traded on the
Nasdaq National Market) minus (iii) the number of shares subject to
an option granted under the Qualified Plan with the same Date of
Grant.
|
(d)
|
Exercise. The
date of exercise of each option (the “Date of Exercise”) shall be the
date or dates specified by the Committee in writing prior to the Date of
Grant of an option that occurs during the three-month period starting with
the date three months after the Date of Grant of the option and ending on
the Date of Expiration of the option. Exercise shall not be
made with respect to less than the total number of shares subject to each
option and shall effected by delivering to the Company written notice of
exercise at least one day prior to the Date of
Exercise.
|
(e)
|
Payment. Payment
for the shares purchased upon exercise of each option (including the
amount, if any, necessary to satisfy federal, state or local income tax
withholding requirements) shall be in cash within five business days
following the Date of Exercise and, in the event payment is not received,
the Company may withhold the shares and cancel the
option. Notwithstanding the foregoing, the Committee may in its
sole discretion permit employees (i) to pay for shares acquired upon
exercise of options by delivering shares of the Common Stock owned by such
employee or (ii) to forgo payment for the shares and receive instead
the net number of shares that would be received if such employee borrowed
shares of the Common Stock for payment of the purchase price and returned
the borrowed shares from the shares acquired upon exercise of the
option.
|
(f)
|
Termination of Employment.
In the event an employee’s employment with the Company terminates
for any reason other than the employee’s death, any option held by such
employee shall forthwith terminate without any further rights on the part
of the employee. In the event of an employee’s death, the
employee’s estate, legal representative or beneficiary may exercise any
option held by such employee at any time prior to the Date of Expiration
with respect to such option. Nothing herein shall be deemed to
confer any right of continued employment with the Company or to limit the
right of the Company to terminate employment with any
employee.
|
6.
|
RIGHTS
AS A STOCKHOLDER
|
7.
|
NONTRANSFERABILITY
OF THE OPTION
|
8.
|
COMPLIANCE
WITH SECURITIES LAWS
|
9.
|
CHANGE
OF CONTROL
|
10.
|
STOCK
ADJUSTMENTS
|
(a)
|
In
the event of a stock dividend, stock split, recapitalization, merger in
which the Company is the surviving corporation or other capital adjustment
affecting the outstanding shares of the Common Stock, an appropriate
adjustment shall be made, as determined by the Board of Directors of the
Company, to the number of shares subject to the Plan and the exercise
price per share with respect to any option granted under the
Plan.
|
(b)
|
In
the event of the complete liquidation of the Company or of a
reorganization, consolidation or merger in which the Company is not the
surviving corporation, any option granted under the Plan shall continue in
full force and effect unless either (i) the Board of Directors of the
Company modifies such option so that it is fully exercisable with respect
to the number of shares measured by the then current compensation prior to
the effective date of such transaction or (ii) the surviving
corporation issues or assumes a stock option contemplated by
Section 424(a) of the Code.
|
11.
|
EFFECTIVENESS
OF THE PLAN
|
12.
|
AMENDMENT
OF THE PLAN
|
13.
|
409A
COMPLIANCE
|
1.
|
PURPOSE
|
2.
|
DEFINITIONS
|
(a)
|
Award means an award of
a Stock Option, Stock Appreciation Right, Restricted Stock Award, Stock
Unit Award, Stock Award or Performance Award granted under the
Plan.
|
(b)
|
Award Agreement means a
written or electronic agreement entered into between the Company and a
Participant setting forth the terms and conditions of an
Award.
|
(c)
|
Board means the Board of
Directors of the Company.
|
(d)
|
Change in Control shall
have the meaning set forth in Section 13.2 hereof.
|
(e)
|
Code means the Internal
Revenue Code of 1986, as amended.
|
(f)
|
Committee means the
Compensation Committee of the Board or a successor thereof, or any other
committee of the Board appointed by the Board to administer the Plan from
time to time.
|
(g)
|
Common Stock means the
Company’s Common Stock, par value $.0013 per share.
|
(h)
|
Company means Progenics
Pharmaceuticals, Inc., a Delaware corporation.
|
(i)
|
Date of Grant means the
date on which an Award under the Plan is granted by the Committee, or such
later date as the Committee may specify to be the effective date of an
Award.
|
(j)
|
Disability means a
Participant being considered “disabled” within the meaning of Section
409A(a)(2)(C) of the Code, unless otherwise provided in an Award
Agreement.
|
(k)
|
Eligible Person means
any person who is an employee, officer, director, consultant, advisor or
other individual service provider of the Company or any Subsidiary, as
determined by the Committee, or any person who is determined by the
Committee to be a prospective employee, officer, director, consultant,
advisor or other individual service provider of the Company or any
Subsidiary.
|
(l)
|
Exchange Act means the
Securities Exchange Act of 1934, as
amended.
|
(m)
|
Fair Market Value with
respect to the value of a share of Common Stock as of a particular day,
shall mean the last reported sale price (as reported on the NASDAQ) of the
Common Stock on such day (unless such day is not a trading day, in which
case, on the last trading day immediately preceding such day on which the
Common Stock is traded on the NASDAQ). If the Common Stock is
not listed on the NASDAQ, the Committee shall determine in good faith the
Fair Market Value in whatever manner it considers appropriate, taking into
account to the extent necessary the requirements of Section 409A of the
Code.
|
(n)
|
Incentive Stock Option
means a Stock Option granted under Section 6 hereof that is intended to
meet the requirements of section 422 of the Code and the regulations
promulgated thereunder.
|
(o)
|
NASDAQ means The Nasdaq
Stock Market’s National Market.
|
(p)
|
Nonqualified Stock
Option means a Stock Option granted under Section 6 hereof that is
not an Incentive Stock Option.
|
(q)
|
Participant means any
Eligible Person who holds an outstanding Award under the
Plan.
|
(r)
|
Performance Awards means
an Award under Section 11 hereof entitling a Participant to a payment in
cash at the end of a performance period, if the performance and other
conditions established by the Committee are satisfied.
|
(s)
|
Plan means this
Progenics Pharmaceuticals, Inc. 2005 Stock Incentive Plan as amended
herein, and as may be amended from time to time, effective as provided in
Section 15.1 hereof.
|
(t)
|
Restricted Stock Award
means a grant of shares of Common Stock to an Eligible Person under
Section 8 hereof that are issued subject to such vesting and transfer
restrictions and such other conditions as are set forth in the Plan and
the applicable Award Agreement.
|
(u)
|
Section 162(m) Award
means any Award that is intended to qualify for the “performance-based”
compensation exception under section 162(m) of the Code and the
regulations promulgated thereunder.
|
(v)
|
Service means a
Participant’s employment or other service relationship with the Company or
any Subsidiary.
|
(w)
|
Stock Appreciation Right
means a contractual right granted to an Eligible Person under
Section 7 hereof entitling such Eligible Person to receive a payment,
representing the difference between the base price per share of the right
and the Fair Market Value of a share of Common Stock at such time, and
subject to such conditions, as are set forth in the Plan and the
applicable Award Agreement.
|
(x)
|
Stock Award means a
grant of shares of Common Stock to an Eligible Person under Section 10
hereof entitling a Participant to shares of Common Stock that are issued
free of transfer restrictions and forfeiture
conditions.
|
(y)
|
Stock Option means a
contractual right granted to an Eligible Person under Section 6 hereof to
purchase shares of Common Stock at such time and price, and subject to
such conditions, as are set forth in the Plan and the applicable Award
Agreement.
|
(z)
|
Stock Unit Award means a
contractual right granted to an Eligible Person under Section 9 hereof
representing notional unit interests equal in value to a share of Common
Stock to be paid and distributed at such times, and subject to such
conditions, as are set forth in the Plan and the applicable Award
Agreement.
|
(aa)
|
Subsidiary means an
entity (whether or not a corporation) that is wholly or majority owned or
controlled, directly or indirectly, by the Company, or any other affiliate
of the Company that is so designated, from time to time, by the Committee;
provided, however, that with respect to Incentive Stock Options, the term
“Subsidiary” shall include only an entity that qualifies under section
424(f) of the Code as a “subsidiary corporation” with respect to the
Company.
|
3.
|
ADMINISTRATION
|
4.
|
SHARES
SUBJECT TO THE PLAN
|
5.
|
PARTICIPATION
AND AWARDS
|
6.
|
STOCK
OPTIONS
|
(i)
|
Eligibility. An
Incentive Stock Option may only be granted to an Eligible Person who is
considered an employee under Treasury Regulation §1.421-7(h) of the
Company or any Subsidiary.
|
(ii)
|
Annual
Limits. No Incentive Stock Option shall be granted to an
Eligible Person 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 or any
Subsidiary would exceed $100,000, determined in accordance with section
422(d) of the Code. This limitation shall be applied by taking
Incentive Stock Options into account in the order in which
granted.
|
(iii)
|
Ten Percent
Stockholders. If a Stock Option granted under the Plan
is intended to be an Incentive Stock Option, and if the Participant, at
the time of grant, owns stock possessing ten percent or more of the total
combined voting power of all classes of Common Stock of the Company or any
Subsidiary, then (A) the Stock Option exercise price per share shall in no
event be less than 110 percent of the Fair Market Value of the Common
Stock on the date of such grant and (B) such Stock Option shall not be
exercisable after the expiration of five years following the date such
Stock Option is granted.
|
(iv)
|
Termination of
Employment. An Award of an Incentive Stock Option may
provide that such Stock Option may be exercised not later than 3 months
following termination of employment of the Participant with the Company
and all Subsidiaries, or not later than one year following death or a
permanent and total disability within the meaning of section 22(e)(3) of
the Code, as and to the extent determined by the Committee to comply with
the requirements of section 422 of the Code.
|
(v)
|
Other Terms and Conditions;
Nontransferability. Any Incentive Stock Option granted
hereunder shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as are deemed necessary or
desirable by the Committee, which terms, together with the terms of the
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. An Award Agreement for an Incentive Stock Option may
provide that such Stock Option shall be treated as a Nonqualified Stock
Option to the extent that certain requirements applicable to “incentive
stock options” under the Code shall not be satisfied. An
Incentive Stock Option shall by its terms be nontransferable other 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.
|
(vi)
|
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 Company may reasonably
require.
|
7.
|
STOCK
APPRECIATION RIGHTS
|
(i)
|
a
change in the composition of the Board such that during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the Company
to effect a transaction described in clause (ii) or (iii) of this Section
13.2) whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least two-thirds of
the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at least a
majority of the members thereof;
|
(ii)
|
the
consummation of a merger, consolidation, reorganization or
similar corporate transaction, whether or not the Company is the surviving
corporation in such transaction, in which outstanding shares of Common
Stock are converted into (A) shares of stock of another company, other
than a conversion into shares of voting common stock of the successor
corporation (or a holding company thereof) representing more than 50% of
the voting power of all capital stock thereof outstanding immediately
after the merger or consolidation, or (B) other securities (of either the
Company or another company) or cash or other property;
|
(iii)
|
any
“Person” (as such term is used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act), except that such term shall not include (A) the Company,
(B) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, (C) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (D) a
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock
of the Company, who is or becomes the “Beneficial Owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities
of the Company (not including in the securities Beneficially Owned by such
Person any securities acquired directly from the Company) representing 30%
or more of the voting power of all capital stock thereof outstanding,
excluding any Person who is an officer or director of the Company or who
becomes such a Beneficial Owner in connection with a transaction described
in clause (ii) of this Section 13.2; or
|
(iv)
|
the
consummation of (A) the sale or other disposition of all or substantially
all of the assets of the Company, or (B) a complete liquidation or
dissolution of the Company.
|
VOTE
BY INTERNET - www.proxyvote.com
Use
the Internet to transmit your voting instructions and for
electronic
delivery of information up until 11:59 PM Eastern Time
on
the day before the meeting date. Have your proxy card in
hand
when
you access the web site and follow the instructions to obtain
your
records and to create an electronic voting instruction form.
VOTE
BY PHONE-1-800-690-6903
Use
any touch-tone telephone to transmit your voting instructions
up
until
11:59 PM Eastern Time on the day before the
meeting. Have
your
proxy card in hand when you call and then follow the
instructions.
VOTE
BY MAIL
Mark,
sign and date your proxy card and return it in the
postage-paid
envelope
we’ve provided or return to Vote Processing, c/o
Broadridge,
51 Mercedes Way, Edgewood, NY 11717.
VOTE IN
PERSON
Attend
the Annual Shareholders Meeting at 10:00 A.M. Eastern
Time
on Monday, June 08, 2009.
Landmark
at Eastview
Rockland
Room
777
Old Saw Mill River Road
Tarrytown,
NY 10591
ELECTRONIC DELIVERY OF FUTURE
SHAREHOLDER
COMMUNICATIONS
If
you would like to reduce the costs incurred by Progenics in
mailing
proxy materials, you can consent to receiving all future
proxy
statements, proxy cards and annual reports electronically via
e-mail
or the Internet. To sign up for electronic delivery, please
follow
the instructions above to vote using the Internet and, when
prompted,
indicate that you agree to receive or access shareholder
communications
electronically in future
years.
|
TO
VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS
FOLLOWS: PROGN1 KEEP
THIS PORTION FOR YOUR RECORDS
|
|||||||||||||||
DETACH
AND RETURN THIS PORTION ONLY
|
|||||||||||||||
THIS
PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
|
|||||||||||||||
PROGENICS PHARMACEUTICALS, INC. | |||||||||||||||
|
|||||||||||||||
Vote
On Directors
|
|||||||||||||||
1. ELECTION
OF DIRECTORS:
|
|||||||||||||||
NOMINEES:
|
For
All
|
Withhold
All
|
For
All
Except
|
To
withhold authority to vote for any individual nominee(s), mark “For All
Except” and write the nominee's number on the line
below
|
|||||||||||
01) Kurt
W. Briner
|
¨
|
¨
|
¨
|
||||||||||||
02) Charles
A. Baker
|
_____________________________________________________ | ||||||||||||||
03) Peter
J. Crowley
|
|||||||||||||||
04) Mark
F. Dalton
|
|||||||||||||||
05) Stephen
P. Goff
|
|||||||||||||||
06) Paul
J. Maddon
|
|||||||||||||||
07) David
A. Scheinberg
|
|||||||||||||||
08) Nicole
S. Williams
|
|||||||||||||||
Vote
On Proposals
|
For
|
Against
|
Abstain
|
||||||||||||
2.
The approval of amendments to the Company’s1998 Employee Stock Purchase
Plan and the 1998 Non-Qualified Employee Stock Purchase Plan to increase
the number of shares of common stock reserved for issuance thereunder to
3,400,000 and 1,100,000, respectively, and to make certain other changes
to the terms of the Plans.
|
¨
|
¨
|
¨
|
||||||||||||
3.
The approval of an amendment to the 2005 Stock Incentive Plan to increase
the number of shares of common stock reserved for issuance thereunder to
5,450,000 and to make certain other changes to the terms of the
Plan.
|
¨
|
¨
|
¨
|
||||||||||||
4. The
ratification of the selection of PricewaterhouseCoopers LLP to serve as
the Company’s independent registered public accounting firm for
2009.
|
¨
|
¨
|
¨
|
||||||||||||
5.
The authority to vote in their discretion on such other business as may
properly come before the meeting.
|
¨
|
¨
|
¨
|
||||||||||||
NOTE:
Please sign exactly as your name(s) appear(s) on this proxy. When
shares are held jointly, each holder should sign. When signing as
attorney, executor, administrator or other fiduciary, please give full
title as such. If the signer is a corporation or partnership, please sign
in full corporate or partnership name, by duly authorized
officer.
|
|||||||||||||||
For
comments, please check this box and write them on the back where
indicated
|
¨
|
||||||||||||||
Please
indicate if you plan to attend this meeting
|
¨
Yes
|
¨
No
|
|||||||||||||
Signature
[PLEASE SIGN WITHIN BOX]
|
Date
|
Signature
(Joint Owners)
|
Date
|
||||||||||||
PROGENICS
PHARMACEUTICALS, INC.
777
OLD SAW MILL RIVER ROAD
TARRYTOWN,
NEW YORK 10591
ANNUAL
MEETING OF STOCKHOLDERS-JUNE 08, 2009
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
|
|||
The
undersigned hereby appoints Paul J. Maddon, Robert A. McKinney and Mark R.
Baker and each of them, as proxies each with the power to appoint his
substitute and hereby authorizes them to represent and to vote, as
designated on the reverse side of this ballot, all of the shares of common
stock of Progenics Pharmaceuticals, Inc. held of record by the undersigned
on April 13, 2009, at the Annual Meeting of Stockholders to be held on
June 08, 2009 and any adjournments or postponements thereof.
THIS
PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED STOCKHOLDER(S). IF NO DIRECTION IS MADE,
THIS PROXY WILL BE VOTED FOR EACH OF
THE PROPOSALS LISTED ON THE REVERSE SIDE.
|
|||
(Continued
and to be signed on the reverse side)
|