<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 30, 1996
REGISTRATION NO. 333-13627
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PROGENICS PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 2834 13-3379479
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) No.)
</TABLE>
777 OLD SAW MILL RIVER ROAD
TARRYTOWN, NEW YORK 10591
(914) 789-2800
(Address, including zip code and telephone number, including area
code, of registrant's principal executive offices)
PAUL J. MADDON, M.D., PH.D.
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENT
PROGENICS PHARMACEUTICALS, INC.
777 OLD SAW MILL RIVER ROAD
TARRYTOWN, NEW YORK 10591
(914) 789-2800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT FOR
SERVICE, SHOULD BE SENT TO:
MARK R. BAKER, ESQ. DAVID E. REDLICK, ESQ.
DEWEY BALLANTINE HALE AND DORR
1301 AVENUE OF THE AMERICAS 60 STATE STREET
NEW YORK, NEW YORK 10019 BOSTON, MASSACHUSETTS 02109
(212) 259-8000 (617) 526-6000
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
--------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 30, 1996
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may
not be sold nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an offer to
sell or the solicitation of an offer to buy nor shall
there be any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
<PAGE>
2,000,000 SHARES
[COMPANY LOGO]
Progenics Pharmaceuticals, Inc.
COMMON STOCK
--------------
All of the shares of Common Stock offered hereby are being sold by Progenics
Pharmaceuticals, Inc. ("Progenics" or the "Company"). Prior to this offering,
there has been no public market for the Common Stock of the Company. It is
anticipated that the initial public offering price will be between $11.00 and
$13.00 per share. See "Underwriting" for a discussion of the factors to be
considered in determining the initial public offering price. The Company has
applied for quotation of the Common Stock on the Nasdaq National Market under
the symbol "PRGN."
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 6.
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
<S> <C> <C> <C>
Per Share.......................................... $ $ $
Total(3)........................................... $ $ $
</TABLE>
(1) See "Underwriting" for information concerning indemnification of the
Underwriters and other information.
(2) Before deducting expenses of the offering payable by the Company estimated
at $750,000.
(3) The Company has granted the Underwriters an option, exercisable within 30
days of the date hereof, to purchase up to 300,000 additional shares of
Common Stock at the Price to Public per share, less the Underwriting
Discount, for the purpose of covering over-allotments, if any. If the
Underwriters exercise such option in full, the total Price to Public,
Underwriting Discount and Proceeds to Company will be $ , $
and $ , respectively. See "Underwriting."
-------------------
The shares of Common Stock are offered severally by the Underwriters when,
as and if delivered to and accepted by them, subject to their right to withdraw,
cancel or reject orders in whole or in part and subject to certain other
conditions. It is expected that delivery of the certificates representing the
shares will be made against payment on or about , 1996 at the office
of Oppenheimer & Co., Inc., Oppenheimer Tower, World Financial Center, New York,
New York 10281.
-------------------
OPPENHEIMER & CO., INC. VECTOR SECURITIES INTERNATIONAL, INC.
The date of this Prospectus is , 1996
<PAGE>
GMK GANGLIOSIDE CONJUGATE VACCINE IS PROGENICS' LEAD CANCER THERAPEUTIC
CANDIDATE.
GMK HAS ENTERED PIVOTAL PHASE III CLINICAL TRIALS FOR THE TREATMENT OF MALIGNANT
MELANOMA.
[DIAGRAM DEPICTING THE COMPANY'S GANGLIOSIDE CONJUGATE VACCINE, GMK]
------------------------
The Company was incorporated in December 1986. Its principal executive
offices are located at 777 Old Saw Mill River Road, Tarrytown, New York 10591
and its telephone number is (914) 789-2800.
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF
THE COMPANY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NASDAQ NATIONAL MARKET, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
------------------------
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS AND RELATED NOTES APPEARING ELSEWHERE IN
THIS PROSPECTUS. UNLESS OTHERWISE INDICATED, ALL INFORMATION IN THIS PROSPECTUS:
(I) ASSUMES NO EXERCISE OF THE UNDERWRITERS' OVER-ALLOTMENT OPTION; (II) GIVES
EFFECT TO A THREE-FOR-FOUR REVERSE STOCK SPLIT WITH RESPECT TO THE COMPANY'S
COMMON STOCK, PAR VALUE $.0013 (THE "COMMON STOCK"), TO BE EFFECTED PRIOR TO THE
COMPLETION OF THIS OFFERING; AND (III) GIVES EFFECT TO THE AUTOMATIC CONVERSION
OF ALL OUTSTANDING SHARES OF THE COMPANY'S PREFERRED STOCK, PAR VALUE $.001 PER
SHARE (THE "PREFERRED STOCK"), INTO AN AGGREGATE OF 4,259,878 SHARES OF COMMON
STOCK. SEE "CAPITALIZATION," "DESCRIPTION OF CAPITAL STOCK" AND "NOTES TO
FINANCIAL STATEMENTS." INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A
HIGH DEGREE OF RISK.
THE COMPANY
Progenics Pharmaceuticals, Inc. ("Progenics" or the "Company") is a
biopharmaceutical company focusing on the development and commercialization of
innovative products for the treatment and prevention of cancer and viral
diseases. The Company applies its immunology expertise to develop
biopharmaceuticals that induce an immune response or that mimic natural immunity
in order to fight cancers, such as malignant melanoma, and viral diseases, such
as human immunodeficiency virus ("HIV") infection. Progenics' most advanced
product candidate, GMK, is a therapeutic vaccine that is undergoing pivotal
Phase III clinical trials for the treatment of melanoma, a deadly form of skin
cancer. Progenics' second vaccine product, MGV, is being developed for the
treatment of various cancers, and recently entered Phase I/II clinical trials.
Based on its participation in the discoveries of two major receptors for HIV,
the Company is engaged in research and development of several therapeutic
products designed to block entry of the virus into human immune system cells.
Progenics has completed preclinical studies on two HIV product candidates, PRO
542 and PRO 367, and plans to initiate Phase I/II clinical trials of these
products in 1997.
Progenics' most advanced product candidates are based on two proprietary
technologies: ganglioside conjugate vaccine technology, which the Company uses
in its cancer program; and universal antiviral binding agent ("UnAB")
technology, which the Company uses in its HIV program. The Company has
exclusively licensed from Memorial Sloan-Kettering Cancer Center
("Sloan-Kettering") several ganglioside conjugate vaccines designed to stimulate
the immune system to destroy cancer cells. The Company applies its UnAB
technology to produce antibody-like molecules designed to neutralize or destroy
HIV or HIV-infected cells.
CANCER THERAPEUTICS
GMK is a therapeutic cancer vaccine designed to prevent recurrence of
melanoma in patients who are at risk of relapse after surgery. Developed at
Sloan-Kettering, GMK is composed of a ganglioside antigen which is abundant in
melanoma cells, conjugated to an immunogenic carrier protein and combined with
an adjuvant (an immunological stimulator). In August 1996, the Company commenced
the first of three pivotal, randomized, multicenter Phase III clinical trials of
GMK. These studies are being conducted in the United States by the Eastern
Cooperative Oncology Group ("ECOG") and the Southwest Oncology Group ("SWOG"),
which are cooperative cancer research groups supported by the National Cancer
Institute ("NCI"). Two international Phase III clinical trials will be initiated
in 1997 and will be conducted in Europe by the Institute of Cancer Research
("ICR") of the United Kingdom and the European Organization for Research and
Treatment of Cancer ("EORTC").
MGV, the Company's second ganglioside conjugate vaccine, incorporates two
ganglioside antigens that are abundant in a wide range of cancer cells. These
cancers include colorectal cancer, lymphoma, small cell lung cancer, sarcoma,
gastric cancer, neuroblastoma and melanoma. In September 1996, MGV entered Phase
I/II clinical trials at Sloan-Kettering.
3
<PAGE>
HIV THERAPEUTICS
The Company is pursuing two approaches based on its HIV receptor technology
in the research and development of products designed to block viral entry into
human immune system cells. The Company's UnAB approach is based on the CD4
receptor while its HIV fusion approach is based on a recently discovered second
receptor for the virus, CC-CKR-5 ("CKR-5").
Progenics is developing PRO 542 to selectively target HIV and prevent it
from infecting healthy cells by binding to the sites on the virus that are
required for entry into the cell. PRO 542 is based on Progenics' UnAB technology
and has been shown IN VITRO to recognize a wide range of HIV strains, including
those most prevalent in the United States and the rest of the world. PRO 542 is
being developed as an immunotherapy to treat HIV-positive individuals and as an
immunoprophylactic treatment to prevent infection of individuals who have been
exposed to the virus. The Company plans to file an investigational new drug
application ("IND") covering PRO 542 by the end of 1996 and initiate Phase I/II
clinical trials in 1997.
Progenics is developing PRO 367 as a therapeutic agent designed to kill
HIV-infected cells. PRO 367 consists of a UnAB molecule linked to a therapeutic
radioisotope and is designed to bind to and destroy HIV-infected cells by
delivering a lethal dose of radioactivity. The Company plans to begin Phase I/II
clinical trials of PRO 367 in 1997.
In June 1996, the Company's scientists in collaboration with researchers at
The Aaron Diamond AIDS Research Center ("ADARC") described in an article
published in NATURE the discovery of a second receptor for HIV, CKR-5. This
receptor enables fusion of HIV with the cell membrane, entry of the viral
genetic information into the cell and initiation of viral replication. The
Company is using its proprietary ProSys assay in a program to discover novel
therapeutics that specifically inhibit the interaction of HIV with the CKR-5
receptor, thereby blocking viral fusion and entry.
BUSINESS STRATEGY
The Company's business strategy is to develop and commercialize innovative
products for cancer and viral diseases that have significant market needs by
capitalizing on its proprietary technologies and its expertise in product
development and clinical trials. Key elements of this strategy include:
collaborating with leading academic and government-supported institutions and
clinical groups to control the Company's research and clinical trial
expenditures; in-licensing promising technologies and product candidates to
minimize basic research costs and overhead; and, maximizing the Company's share
of revenues from products that are brought to market by initiating clinical
trials of product candidates, when appropriate, prior to establishing
collaborations with pharmaceutical companies. Consistent with this strategy,
Progenics has limited its corporate infrastructure and operating costs while
developing four product candidates that have entered, or are about to enter,
clinical trials.
4
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Common Stock offered by the Company.......... 2,000,000 shares
Common Stock to be outstanding after the
offering................................... 8,554,553 shares (1)
Use of proceeds.............................. To fund clinical trials of its leading
product candidates, research and development,
in-licensing of late-stage technology and for
working capital and general corporate
purposes.
Proposed Nasdaq National Market symbol....... PRGN
Risk Factors................................. This offering involves a high degree of risk.
See "Risk Factors."
</TABLE>
- ------------------------
(1) Based on the number of shares outstanding at September 30, 1996. Excludes
2,051,691 shares of Common Stock reserved as of such date for issuance
pursuant to outstanding options under the Company's stock option plans and
pursuant to outstanding warrants and 62,775 shares subject to options to be
granted prior to the completion of this offering at an exercise price equal
to the initial public offering price. See "Capitalization" and "Description
of Capital Stock."
SUMMARY FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 1,
NINE MONTHS ENDED 1986
(INCEPTION)
YEARS ENDED DECEMBER 31, SEPTEMBER 30, THROUGH
------------------------------- -------------------- SEPTEMBER 30,
1993 1994 1995 1995 1996 1996
--------- --------- --------- --------- --------- -------------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues:
Research grants..................................... $ 84 $ 504 $ 725 $ 502 $ 268 $ 1,735
Product sales....................................... 50 52 50 40 67 358
Interest income..................................... 53 108 46 44 91 633
--------- --------- --------- --------- --------- -------------
Total revenues.................................... 187 664 821 586 426 2,726
--------- --------- --------- --------- --------- -------------
Expenses:
Research and development............................ 1,547 2,859 3,853 2,585 2,654 15,505
General and administrative.......................... 748 878 1,094 790 984 6,257
Interest expense.................................... 38 50 87 53 40 440
Depreciation and amortization....................... 249 289 291 229 230 1,663
--------- --------- --------- --------- --------- -------------
Total expenses.................................... 2,582 4,076 5,325 3,657 3,908 23,865
--------- --------- --------- --------- --------- -------------
Net loss.............................................. $ (2,395) $ (3,412) $ (4,504) $ (3,071) $ (3,482) $ (21,139)
--------- --------- --------- --------- --------- -------------
--------- --------- --------- --------- --------- -------------
Pro forma net loss per common share(2)................ $ (0.73) $ (0.57)
--------- ---------
--------- ---------
Pro forma weighted average common shares
outstanding(2)...................................... 6,135 6,135
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
-------------------------
ACTUAL AS ADJUSTED(3)
--------- --------------
<S> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................................................ $ 1,746 $ 23,316
Working capital.......................................................................... 894 22,464
Total assets............................................................................. 2,841 24,411
Capital lease obligations and deferred lease liability, long-term portion................ 181 181
Total stockholders' equity............................................................... 1,668 23,238
</TABLE>
- ------------------------
(2) See Note 2 to the Company's Financial Statements for information concerning
computation of the pro forma per share data.
(3) As adjusted to reflect the sale of 2,000,000 shares of Common Stock offered
by the Company hereby, assuming an initial public offering price of $12.00
per share, and the receipt of the net proceeds therefrom after deducting the
underwriting discount and estimated offering expenses. See "Use of
Proceeds."
5
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED HEREBY IS SPECULATIVE IN
NATURE AND INVOLVES A HIGH DEGREE OF RISK. IN ADDITION TO THE OTHER INFORMATION
CONTAINED IN THIS PROSPECTUS, THE FOLLOWING FACTORS SHOULD BE CONSIDERED
CAREFULLY IN EVALUATING THE COMPANY AND ITS BUSINESS BEFORE PURCHASING THE
SHARES OF COMMON STOCK OFFERED HEREBY. THIS PROSPECTUS CONTAINS CERTAIN
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SECTION 21E OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"). ANY STATEMENTS
CONTAINED HEREIN THAT ARE NOT STATEMENTS OF HISTORICAL FACT MAY BE DEEMED TO BE
FORWARD-LOOKING STATEMENTS. FOR EXAMPLE, THE WORDS "BELIEVES," "ANTICIPATES,"
"PLANS," "EXPECTS," "INTENDS" AND SIMILAR EXPRESSIONS ARE INTENDED TO IDENTIFY
FORWARD-LOOKING STATEMENTS. THERE ARE A NUMBER OF IMPORTANT FACTORS, INCLUDING
THE RISK FACTORS SET FORTH BELOW, THAT COULD CAUSE THE COMPANY'S ACTUAL RESULTS
TO DIFFER MATERIALLY FROM THOSE INDICATED BY SUCH FORWARD-LOOKING STATEMENTS.
EARLY STAGE OF PRODUCT DEVELOPMENT; TECHNOLOGICAL UNCERTAINTIES
The Company is in the development stage, and the development of any products
will require significant further research, development, testing and regulatory
approvals and additional investment prior to commercialization. Substantially
all of the Company's resources have been, and for the foreseeable future will
continue to be, dedicated to the development of products for cancer and viral
diseases, most of which are still in the early stages of development and
testing. There are a number of technological challenges that the Company must
successfully address to complete most of its development efforts. In addition,
the product development programs conducted by the Company and its collaborators
are subject to the risks of failure inherent in the development of product
candidates based on new technologies. These risks include the possibility that
the technologies used by the Company will prove to be ineffective or any or all
of the Company's product candidates will prove to be unsafe or otherwise fail to
receive necessary regulatory approvals; that the product candidates, if safe and
effective, will be difficult to manufacture on a large scale or uneconomical to
market; that the proprietary rights of third parties will preclude the Company
or its collaborators from marketing the products utilizing the Company's
technologies; or that third parties will market superior or equivalent products.
To the Company's knowledge, no cancer or therapeutic vaccine and no genetically
engineered antibody for the treatment of HIV infection has been approved for
marketing and there can be no assurance that any of the Company's products will
be successfully developed. The commercial success of the Company's products,
when and if approved for marketing by the U.S. Food and Drug Administration (the
"FDA"), will depend upon their acceptance by the medical community and third
party payors as clinically useful, cost-effective and safe. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
"Business--Product Development," "--Manufacturing," "--Government Regulation"
and "--Competition."
UNCERTAINTY ASSOCIATED WITH PRECLINICAL AND CLINICAL TESTING
The grant of regulatory approvals for the commercial sale of any of the
Company's potential products will depend on the Company successfully conducting
extensive preclinical and clinical testing to demonstrate their safety and
efficacy in humans. The results of preclinical studies by the Company and/or its
collaborators may be inconclusive and may not be indicative of results that will
be obtained in human clinical trials. In addition, results attained in early
human clinical trials relating to the products under development by the Company
may not be indicative of results that will be obtained in later clinical trials.
As results of particular preclinical studies and clinical trials are received by
the Company, the Company may abandon projects which it might otherwise have
believed to be promising, some of which may be described in this Prospectus.
Although human clinical trials have commenced with respect to the
development of GMK and MGV, the Company is developing other therapeutic
products, including PRO 542 and PRO 367, on which it plans to file INDs with the
FDA or make equivalent filings outside of the U.S., and there can be no
assurance that necessary preclinical studies on these products will be completed
satisfactorily or that the Company
6
<PAGE>
otherwise will be able to make its intended filings. Further, there can be no
assurance that the Company will be permitted to undertake and complete human
clinical trials of any of the Company's potential products, either in the U.S.
or elsewhere, or, if such trials are permitted, that such products will not have
undesirable side effects or other characteristics that may prevent them from
being approved or limit their commercial use if approved.
The rate of completion of the Company's human clinical trials, if permitted,
will be dependent upon, among other factors, the rate of patient enrollment.
Patient enrollment is a function of many factors, including the size of the
patient population, the nature of the protocol, the availability of alternative
treatments, the proximity to clinical sites and the eligibility criteria for the
study. Delays in planned patient enrollment might result in increased costs and
delays, which could have a material adverse effect on the Company. The Company
or the FDA or other regulatory agencies may suspend clinical trials at any time
if the subjects or patients participating in such trials are being exposed to
unacceptable health risks. In addition, clinical trials are often conducted with
patients having the most advanced stages of disease. During the course of
treatment, these patients can suffer adverse medical effects or die for reasons
that may not relate to the product being tested, but which can nevertheless
affect adversely the clinical trials. In addition, there can be no assurance
that clinical trials of products under development will demonstrate safety and
efficacy at all or to the extent necessary to obtain regulatory approvals.
Companies in the biotechnology industry have suffered significant setbacks in
advanced clinical trials, even after obtaining promising results in earlier
trials. The failure to adequately demonstrate the safety and efficacy of a
therapeutic product under development could delay or prevent regulatory approval
of the product and would have a material adverse effect on the Company.
Lastly, the Company has limited experience in conducting clinical trials.
The Company relies, in part, on academic institutions and on clinical research
organizations to conduct and monitor certain clinical trials. There can be no
assurance that such entities will conduct the clinical trials successfully. In
addition, certain clinical trials for the Company's products will be conducted
by government-sponsored agencies. Because the conduct of such trials will be
dependent on government participation and funding, the Company will have less
control over such trials than if the Company were the sole sponsor thereof. As a
result, there can be no assurance that these trials will commence or be
completed as planned. See "Business--Product Development," "--Cancer
Therapeutics," "--HIV Therapeutics" and "--Government Regulation."
HISTORY OF OPERATING LOSSES AND ACCUMULATED DEFICIT; NO PRODUCT REVENUE AND
UNCERTAINTY OF FUTURE PROFITABILITY
The Company has incurred substantial losses in each year since its
inception. As of September 30, 1996, the Company had an accumulated deficit of
approximately $21 million. Such losses have resulted principally from costs
incurred in the Company's research and development programs and general and
administrative costs associated with the Company's development. The Company has
derived only limited revenues from federal research grants and from the sale of
research reagents. No revenues have been generated by the Company from product
sales (other than for research purposes) or royalties and no product sales
(other than sales of research reagents) or royalties are likely for a number of
years, if ever. The Company expects to incur additional operating losses over at
least the next several years and expects losses in the future to increase
significantly as the Company expands development and clinical trial efforts. The
Company expects that losses will fluctuate from quarter to quarter and that such
fluctuations may be substantial. The Company's ability to achieve profitability
is dependent in part on obtaining regulatory approvals for products and entering
into agreements for commercialization of such products. There can be no
assurance that such regulatory approvals will be obtained or such agreements
will be entered into. Further, there can be no assurances that the Company's
operations will become profitable even if products under development by the
Company or any collaborators are commercialized. See "Selected Financial Data"
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations."
7
<PAGE>
NEED FOR ADDITIONAL FINANCING AND UNCERTAIN ACCESS TO CAPITAL FUNDING
Progenics' current development projects require substantial capital. The
Company believes that the net proceeds of this offering, together with the
Company's present capital resources, should be sufficient to fund operations
through the end of 1998 based on the Company's current operating plan. No
assurance can be given that there will be no change that would consume the
Company's liquid assets before such time. Thereafter, the Company will require
substantial funds in addition to the net proceeds of this offering to conduct
development activities, preclinical studies, clinical trials and other
activities relating to the commercialization of any potential products. The
Company anticipates that these funds will be obtained from external sources and
intends to seek additional financing to fund future operations. There can be no
assurance, however, that the Company will be able to negotiate such arrangements
or obtain the additional funds it will require on acceptable terms, if at all.
In addition, the Company's cash requirements may vary materially from those now
planned because of results of research and development, results of product
testing, potential relationships with in-licensors and collaborators, changes in
the focus and direction of the Company's research and development programs,
competitive and technological advances, the cost of filing, prosecuting,
defending and enforcing patent claims, the regulatory approval process,
manufacturing, marketing and other costs associated with the commercialization
of products following receipt of regulatory approvals and other factors.
If adequate funds are not available, the Company may be required to delay,
reduce the scope of or eliminate one or more of its programs; to obtain funds
through arrangements with collaborative partners or others that may require the
Company to relinquish rights to certain of its technologies, product candidates
or products that the Company would otherwise seek to develop or commercialize
itself; or to license the rights to such products on terms that are less
favorable to the Company than might otherwise be available. If the Company
raises additional funds by issuing equity securities, further dilution to
stockholders may result and new investors could have rights superior to existing
stockholders. The Company has no established banking arrangements through which
it can obtain debt financing. See "Use of Proceeds," "Capitalization" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
COMPETITION AND TECHNOLOGICAL CHANGE
Competition in the biopharmaceutical industry is intense. The Company faces
competition from many companies and major universities and research institutions
in the United States and abroad. Many of the Company's competitors have
substantially greater resources, experience in conducting preclinical studies
and clinical trials and obtaining regulatory approvals for their products,
operating experience, research and development and marketing capabilities and
production capabilities than those of the Company. There can be no assurance
that the Company's competitors will not develop technologies and products that
are safer or more effective than any being developed by the Company or which
would render the Company's technology and products obsolete and noncompetitive,
and the Company's competitors may succeed in obtaining FDA approval for products
more rapidly than the Company. The Company will face competition from companies
marketing existing products or developing new products for diseases targeted by
the Company's technologies. The development of new products for those diseases
for which the Company is developing products could render the Company's product
candidates noncompetitive and obsolete. There can be no assurance that the
products under development by the Company and its collaborators will be able to
compete successfully with existing products or products under development by
other companies, universities and other institutions or that they will attain
regulatory approval in the United States or elsewhere. With respect to the
Company's products for the treatment of HIV infection, two classes of products
made by competitors of the Company have been approved for marketing by the FDA
for the treatment of HIV infection and AIDS: reverse transcriptase inhibitors
and protease inhibitors. Both types of drugs are inhibitors of viral enzymes and
have shown efficacy in reducing the concentration of HIV in the blood and
prolonging asymptomatic periods in HIV-positive individuals, especially when
administered
8
<PAGE>
in combination. However, it is not known whether HIV will develop resistance to
these drugs over time. In addition, the use of these drugs presents problems of
toxic side effects and compliance for some patients.
A significant amount of research in the biopharmaceutical field is also
being carried out at academic and government institutions. The Company's
strategy is to in-license technology and product candidates from academic and
government institutions. These institutions are becoming increasingly aware of
the commercial value of their findings and are becoming more aggressive in
pursuing patent protection and negotiating licensing arrangements to collect
royalties for use of technology that they have developed. These institutions may
also market competitive commercial products on their own or in collaboration
with competitors and will compete with the Company in recruiting highly
qualified scientific personnel. Any resulting increase in the cost or decrease
in the availability of technology or product candidates from these institutions
may affect the Company's business strategy.
If the Company receives regulatory approvals to commence commercial sales of
products, the Company will also be competing with respect to commercial scale
manufacturing and marketing capabilities, areas in which the Company has limited
or no experience. See "Business--Manufacturing" and "--Sales and Marketing."
LIMITED MANUFACTURING CAPABILITIES
In order to successfully commercialize its product candidates, Progenics
must be able to manufacture its products in commercial quantities, in compliance
with regulatory requirements, at acceptable costs and in a timely manner. The
manufacture of the types of biopharmaceutical products being developed by the
Company presents several risks and difficulties. For example, the manufacture of
recombinant proteins used in certain of the Company's current HIV products in
development is complex, can be difficult to accomplish even in small quantities,
can be difficult to scale-up when large scale production is required and can be
subject to delays, inefficiencies and poor or low yields of quality products.
Although Progenics has constructed two pilot-scale manufacturing facilities
which it believes will be sufficient to meet the Company's initial needs for
clinical trials, these facilities may be insufficient for all of its late-stage
clinical trials and for its commercial-scale manufacturing requirements.
Accordingly, the Company expects to expand its manufacturing staff and
facilities and obtain new facilities or to contract with third parties to assist
with production. Manufacture of some of Progenics' initial products for
commercialization is expected to require third party contract manufacturers at a
significant cost to the Company. In employing third party manufacturers,
Progenics will not control all aspects of the manufacturing process. There can
be no assurance that the Company will be able to obtain from third party
manufacturers adequate supplies in a timely fashion for commercialization, or
that commercial quantities of any such products, if approved for marketing, will
be available from contract manufacturers at acceptable costs. In the event the
Company decides to establish a full-scale commercial manufacturing facility, the
Company will require substantial additional funds and will be required to hire
and train significant numbers of employees and comply with the extensive
regulations applicable to such a facility. There is no assurance that Progenics
will be able to develop a current Good Manufacturing Practices ("cGMP")
manufacturing facility sufficient for all clinical trials or commercial-scale
manufacturing. The cost of manufacturing certain products may make them
prohibitively expensive. In addition, in order to successfully commercialize its
product candidates, the Company may be required to reduce the cost of
production, and there can be no assurance that the Company will be able to do
so. See "Business--Manufacturing."
AVAILABILITY OF MATERIALS
Although Progenics has not experienced any significant difficulties in
obtaining the raw materials necessary to perform its research, development and
manufacturing activities to date, there can be no assurance that sufficient
quantities of these materials will be available to support continued research,
development or commercial manufacture of any of the Company's planned products.
The Company currently obtains supplies of critical materials used in production
of GMK and MGV from single sources.
9
<PAGE>
Specifically, commercialization of the Company's GMK and MGV cancer vaccine
candidates requires a certain adjuvant from Aquila Biopharmaceuticals Inc.
("Aquila"). The Company has entered into a license and supply agreement with
Aquila pursuant to which Aquila agreed to supply the Company with all of its
requirements for the QS-21 adjuvant for use in certain ganglioside-based cancer
vaccines, including GMK and MGV. The agreement grants to the Company a license
to use Aquila's patented technology to develop, manufacture and sell certain
cancer vaccines using QS-21 and, if Aquila is unable to supply the Company with
sufficient quantities of QS-21, the Company has the right to manufacture QS-21
itself or purchase it from third parties for so long as Aquila is unable to
supply the Company with sufficient quantities. There can be no assurance that
Aquila will be able to supply sufficient quantities of QS-21 to the Company. See
"Business--Manufacturing."
GOVERNMENT REGULATION; NO ASSURANCE OF REGULATORY APPROVAL
The Company and its products are subject to comprehensive regulation by the
FDA in the United States and by comparable authorities in other countries. These
national agencies and other federal, state, and local entities regulate, among
other things, the preclinical and clinical testing, safety, effectiveness,
approval, manufacture, labeling, marketing, export, storage, record keeping,
advertising, and promotion of the Company's products.
Among other requirements, FDA approval of the Company's products, including
a review of the manufacturing processes and facilities used to produce such
products, will be required before such products may be marketed in the United
States. In order to obtain FDA approval of a product, the Company must
demonstrate to the satisfaction of the FDA that such product is safe and
effective for its intended uses and that the Company is capable of manufacturing
the product with procedures that conform to the FDA's cGMP regulations, which
must be followed at all times. The process of obtaining FDA approvals can be
costly, time consuming, and subject to unanticipated delays and the Company has
had only limited experience in filing and pursuing applications necessary to
gain regulatory approvals. There can be no assurance that such approvals will be
granted on a timely basis, or at all.
The Company's analysis of the results of its clinical studies is subject to
review and interpretation by the FDA, which may differ from the Company's
analysis. There can be no assurance that the Company's data or its
interpretation of data will be accepted by the FDA. In addition, delays or
rejections may be encountered based upon changes in applicable law or FDA policy
during the period of product development and FDA regulatory review. Any failure
to obtain, or delay in obtaining, FDA approvals would adversely affect the
ability of the Company to market its proposed products. Moreover, even if FDA
approval is granted, such approval may include significant limitations on
indicated uses for which a product could be marketed.
Both before and after approval is obtained, a product, its manufacturer and
the holder of the New Drug Application ("NDA") or Product License Application
("PLA") for the product are subject to comprehensive regulatory oversight.
Violations of regulatory requirements at any stage, including the preclinical
and clinical testing process, the approval process, or post-approval marketing
activities may result in various adverse consequences, including the FDA's delay
in approving or refusal to approve a product, withdrawal of an approved product
from the market, and/or the imposition of criminal penalties against the
manufacturer and/or the holder of the marketing approval for the product. In
addition, later discovery of previously unknown problems relating to a marketed
product may result in restrictions on such product, manufacturer, or the holder
of the marketing approval for the product, including withdrawal of the product
from the market. Also, new government requirements may be established that could
delay or prevent regulatory approval of the Company's products under
development.
The Company is also subject to numerous and varying foreign regulatory
requirements governing the design and conduct of clinical trials and the
manufacturing and marketing of its products. The approval procedure varies among
countries and can involve additional testing, and the time required to obtain
10
<PAGE>
approval may differ from that required to obtain FDA approval. The foreign
regulatory approval process may include all of the risks associated with
obtaining FDA approval set forth above, and there can be no assurance that
foreign regulatory approvals will be obtained on a timely basis, if at all.
Approval by the FDA does not ensure approval by regulatory authorities in other
foreign countries. There can be no assurance that the Company or its partners
will file for regulatory approvals or receive necessary approvals to
commercialize its product candidates in any market. Delays in receipt of or
failure to receive regulatory approvals, or the loss of previously received
approvals, would have a material adverse effect on the Company's business,
financial condition and results of operations.
The Company relies, in part, on academic institutions and on clinical
research organizations to conduct and monitor certain of its clinical trials.
There can be no assurance that such entities will conduct the clinical trials
successfully. In addition, certain clinical trials for the Company's products
will be conducted by government-sponsored agencies. Because the conduct of such
trials will be dependent on government participation and funding, the Company
will have less control over such trials than if the Company were the sole
sponsor. As a result, there can be no assurance that these trials will commence
or be completed as planned. See "Business--Government Regulation."
DEPENDENCE ON THIRD PARTIES
The Company relies heavily on third parties for a variety of functions,
including certain functions relating to research and development, manufacturing,
clinical trials management and regulatory affairs. As of September 30, 1996, the
Company had only 27 full-time employees. The Company is party to several
collaborative research agreements which place substantial responsibility on the
Company's partners for clinical development of products. The Company also
in-licenses technology from medical and academic institutions in order to
minimize investments in early research and enters into collaboration
arrangements with certain of these entities with respect to clinical trials of
product candidates.
To date, the Company has derived most of its revenues from federal research
grants. The government's obligation to make payments under these grants is
subject to appropriation by the United States Congress for funding in each year.
Moreover, it is possible that Congress or the government agencies that
administer these government research programs will determine to scale back these
programs or terminate them or that the government will award future grants to
competitors of the Company instead of the Company. In addition, there can be no
assurances that the Company will be awarded any such grants in the future or
that any amounts derived therefrom will not be less than those received to date.
Certain of the Company's clinical trials will be partially paid for by
government funds. Any future reduction in the funding the Company receives
either from federal research grants or with respect to clinical trials could
adversely affect the Company's business, financial condition and results of
operations.
Progenics' business strategy includes entering into strategic alliances or
licensing arrangements with corporate partners, primarily pharmaceutical and
biotechnology companies, relating to the development and commercialization of
certain of its potential products. There can be no assurance that such
collaborations will be available to the Company on acceptable terms, if at all,
or that any such relationships, if established, will be scientifically or
commercially successful. The Company expects that under certain of these
arrangements, the collaborative partner will have the responsibility for
conducting human clinical trials and the submission for regulatory approval of
the product candidate with the FDA and certain other regulatory agencies. Should
the collaborative partner fail to develop a marketable product, the Company's
business may be materially adversely affected.
There can be no assurance that Progenics will be able to establish and
maintain any of the corporate, academic or government relationships described
above on terms acceptable to the Company, that the Company can enter into these
arrangements without undue delays or expenditures, or that these arrangements
will allow the Company to compete successfully against other companies.
11
<PAGE>
LACK OF SALES AND MARKETING EXPERIENCE
If FDA and other approvals are obtained with respect to any of its products,
Progenics expects to market and sell its products through co-marketing,
co-promotion or other licensing arrangements with third parties. Progenics has
no experience in sales, marketing or distribution and its current management and
staff are not trained in these areas. To the extent that the Company enters into
co-marketing, co-promotion or other licensing arrangements for the marketing and
sale of its products, any revenues received by the Company will be dependent on
the efforts of third parties. The Company would not control the amount and
timing of resources such third parties would devote to the Company's products.
If any of such parties were to breach or terminate its agreement with the
Company or otherwise fail to conduct its collaborative activities successfully
and in a timely manner, the commercialization of product candidates would be
delayed or terminated. Any such delay or termination could have a material
adverse effect on the Company's business, financial condition and results of
operations. In addition, if the Company markets products directly, significant
additional expenditures and management resources would be required to develop an
internal sales force. There can be no assurance that the Company will be able to
establish a successful sales force. See "Business--Business Strategy."
DEPENDENCE ON AND UNCERTAINTY OF PROTECTION OF PATENTS AND PROPRIETARY RIGHTS
Progenics' policy is to protect its proprietary technology, and the Company
considers the protection of such rights to be important to its business. In this
regard, under a license agreement with Sloan-Kettering, the Company has obtained
worldwide, exclusive rights to certain technology relating to ganglioside
conjugate vaccines, including GMK and MGV, and their use to treat or prevent
cancer. In addition, the Company has licensed from Columbia University
worldwide, exclusive rights to certain technology relating to CD4 and its use to
treat or prevent HIV infection including patents and patent applications which
name Progenics' Chairman, President, Chief Executive Officer and Chief Science
Officer, Paul J. Maddon, M.D., Ph.D., and certain members of the Company's
Virology Scientific Advisory Board as inventors. Progenics has also filed a
number of U.S. and foreign patent applications on its UnAB, ProSys and ProVax
technologies and uses of these technologies. The Company is required to make
substantial cash payments and achieve certain milestones and requirements,
including, without limitation, filing INDs, obtaining product approvals and
introducing products, to maintain its rights under these licenses. In the past,
the Company did not achieve a milestone under the Columbia University agreement
and the Company and Columbia agreed to a modification of the agreement. There is
no assurance that the Company will be able to make required cash payments when
due or achieve the milestones and requirements in order to maintain its rights
under these licenses. Termination of any of such licenses could have a material
adverse effect on the business, financial condition and results of operations of
the Company.
There can be no assurance that patent applications owned by or licensed to
the Company will result in patents being issued or that, if issued, the patents
will afford protection against competitors with similar technology. Although a
patent has a statutory presumption of validity in the United States, the
issuance of a patent is not conclusive as to such validity or as to the
enforceable scope of the claims of the patent. There can be no assurance that
the Company's issued patents or any patents subsequently issued to or licensed
by the Company will not be successfully challenged in the future. The validity
or enforceability of a patent after its issuance by the patent office can be
challenged in litigation. The cost of litigation to uphold the validity of
patents and to prevent infringement can be substantial. If the outcome of the
litigation is adverse to the owner of the patent, third parties may then be able
to use the invention covered by the patent without payment. There can be no
assurance that the Company's patents will not be infringed or successfully
avoided through design innovation.
The Company may not retain all rights to developments, inventions, patents
and other proprietary information resulting from its collaborative arrangements,
whether in effect as of the date hereof or which may be entered into at some
future time with third parties. As a result, the Company may be required to
license such developments, inventions, patents or other proprietary information
from such third parties,
12
<PAGE>
possibly at significant cost to the Company. The Company's failure to obtain any
such licenses could have a material adverse effect on the business, financial
condition and results of operations of the Company.
There may be patent applications and issued patents belonging to competitors
that may require the Company to alter its products, pay licensing fees or cease
certain activities. If the Company's products conflict with patents that have
been or may be granted to competitors, universities or others, such other
persons could bring legal actions against the Company claiming damages and
seeking to enjoin manufacturing and marketing of the affected products. If any
such actions are successful, in addition to any potential liability for damages,
the Company could be required to obtain a license in order to continue to
manufacture or market the affected products. There can be no assurance that the
Company would prevail in any such action or that any license required under any
such patent would be made available on acceptable terms or at all. There is
significant litigation in the industry regarding patent and other intellectual
property rights. If the Company becomes involved in such litigation, it could
consume substantial resources.
Progenics has also filed a number of U.S. and foreign patent applications
(one of which is owned jointly with ADARC) relating to the discovery of a second
HIV receptor, CKR-5. In addition to the risks described above, the Company is
aware that other groups have claimed discoveries similar to that covered by the
Company's patent applications. These groups may have made their discoveries
prior to the discoveries covered by the Company's patent applications and may
have filed their applications prior to the Company's patent applications. The
Company does not expect to know for several years the relative strength of its
patent position as compared to these other groups.
In addition to the patents, patent applications, licenses and intellectual
property processes described above, the Company also relies on unpatented
technology, trade secrets and information. No assurance can be given that others
will not independently develop substantially equivalent information and
techniques or otherwise gain access to the Company's technology or disclose such
technology, or that the Company can meaningfully protect its rights in such
unpatented technology, trade secrets and information. The Company requires each
of its employees, consultants and advisors to execute a confidentiality
agreement at the commencement of an employment or consulting relationship with
the Company. The agreements generally provide that all inventions conceived by
the individual in the course of employment or in providing services to the
Company and all confidential information developed by, or made known to, the
individual during the term of the relationship shall be the exclusive property
of the Company and shall be kept confidential and not disclosed to third parties
except in limited specified circumstances. There can be no assurance, however,
that these agreements will provide meaningful protection for the Company's
information in the event of unauthorized use or disclosure of such confidential
information. See "Business--Patents and Proprietary Technology."
DEPENDENCE UPON KEY PERSONNEL
Progenics is dependent upon certain key management and scientific personnel.
In particular, the loss of Dr. Maddon could have a materially adverse effect on
Progenics, unless a qualified replacement could be found. Progenics maintains a
key-man life insurance policy on Dr. Maddon in the amount of $2.5 million. The
Company's employment agreement with Dr. Maddon expires in 1998, and there can be
no assurance that it will be renewed by the parties thereto. See
"Management--Executive Compensation."
ATTRACTION AND RETENTION OF PERSONNEL
Competition for qualified employees among companies in the biopharmaceutical
industry is intense. Progenics' future success depends upon its ability to
attract, retain and motivate highly skilled employees. Although Progenics has
established relationships with the scientists who serve on its Scientific
Advisory Boards, these individuals do not devote a substantial portion of their
time to Progenics-related activities and do not participate directly in the
development of Progenics' products on a daily basis. Attracting
13
<PAGE>
desirable employees will require Progenics to offer competitive compensation
packages, including stock options. In order to successfully commercialize its
products, the Company must substantially expand its personnel, particularly in
the areas of manufacturing, clinical trials management, regulatory affairs,
business development and marketing. There can be no assurance that the Company
will be successful in hiring or retaining qualified personnel. Managing the
integration of new personnel and Company growth generally could pose significant
risks to the Company's development and progress. The addition of such personnel
may result in significant changes in the Company's utilization of cash resources
and its development schedule. See "Business--Human Resources."
UNCERTAINTY RELATED TO HEALTH CARE REFORM MEASURES AND REIMBURSEMENT
In recent years, there have been numerous proposals to change the health
care system in the United States. Some of these proposals have included measures
that would limit or eliminate payments for certain medical procedures and
treatments or subject the pricing of pharmaceuticals to government control.
Significant changes in the health care system in the United States or elsewhere
might have a substantial impact on the manner in which the Company conducts its
business. Such changes also could have a material adverse effect on the
Company's ability to raise capital. Furthermore, the Company's ability to
commercialize products may be adversely affected to the extent that such
proposals have a material adverse effect on the business, financial condition
and profitability of other companies that are collaborators or prospective
collaborators of the Company.
In addition, significant uncertainty exists as to the reimbursement status
of newly-approved health care products. The Company's and its collaborators'
success in generating revenue from sales of products may depend, in part, on the
extent to which reimbursement for the costs of such products will be available
from third-party payors, such as government health administration authorities,
private health insurers and health maintenance organizations ("HMOs"). In
addition, the trend towards managed health care in the United States and the
concurrent growth of organizations such as HMOs, which could control or
significantly influence the purchase of health care services and products, as
well as legislative proposals to reduce government insurance programs, may all
result in lower prices for products and could affect the market for products. If
the Company succeeds in bringing one or more products to market, there can be no
assurance that such products will be considered cost-effective or that adequate
third-party insurance coverage will be available for the Company to establish
and maintain price levels sufficient for realization of an appropriate return on
its investment in product development. Third-party payors are increasingly
attempting to contain health care costs by limiting both coverage and the level
of reimbursement of new products approved for marketing by the FDA. If adequate
coverage and reimbursement levels are not provided by government and third-party
payors for uses of the Company's products, the market acceptance of such
products would be adversely affected.
RISK OF PRODUCT LIABILITY; LIMITED AVAILABILITY OF INSURANCE
The Company's business exposes it to potential product liability risks which
are inherent in the testing, manufacturing, marketing and sale of human vaccine
and therapeutic products, and there can be no assurance that the Company will be
able to avoid significant product liability exposure. Product liability
insurance for the biopharmaceutical industry in generally expensive, if
available at all. The Company has obtained product liability insurance coverage
in the amount of $5 million per occurrence, subject to a $5 million aggregate
limitation. However, there can be no assurance that the Company's present
insurance coverage is now or will continue to be adequate as the Company further
develops products. In addition, certain of the Company's license and
collaborative agreements require the Company to obtain product liability
insurance and it is possible that license and collaborative agreements which the
Company may enter into in the future may also include such a requirement. There
can be no assurance that in the future adequate insurance coverage will be
available in sufficient amounts or at a reasonable cost, or that a product
liability claim or recall would not have a material adverse effect on the
Company.
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<PAGE>
HAZARDOUS MATERIALS; ENVIRONMENTAL MATTERS
The Company's research and development work and manufacturing processes
involve the use of hazardous, controlled and radioactive materials. The Company
is subject to federal, state and local laws and regulations governing the use,
manufacture, storage, handling and disposal of such materials and certain waste
products. Although the Company maintains safety procedures for handling and
disposing of such materials that it believes comply with the standards
prescribed by such laws and regulations, the risk of accidental contamination or
injury from these materials cannot be completely eliminated. In the event of
such an accident, the Company could be held liable for any damages that result
and any such liability could exceed the resources of the Company. Although the
Company believes that it is in compliance in all material respects with
applicable environmental laws and regulations, there can be no assurance that
the Company will not be required to incur significant costs to comply with
environmental laws and regulations in the future, or that the operations,
business or assets of the Company will not be materially or adversely affected
by current or future environmental laws or regulations.
The research and development efforts sponsored by the Company involve
laboratory animals. The Company may be adversely affected by changes in laws,
regulations or accepted clinical procedures or by social pressures that would
restrict the use of animals in testing or by actions against the Company or its
collaborators by groups or individuals opposed to such testing.
ABSENCE OF PRIOR TRADING MARKET; POSSIBLE VOLATILITY OF STOCK PRICE
Prior to this offering, there has been no public market for the Common
Stock, and there is no assurance that an active market will develop or be
sustained after this offering or that the market price of the Common Stock will
not decline below the initial public offering price. The initial public offering
price will be determined by negotiation between the Company and the
representatives of the Underwriters and may bear no relationship to the price at
which the Common Stock will trade after completion of this offering. See
"Underwriting" for factors to be considered in determining such offering price.
The market price of the shares of Common Stock, like that of the common stock of
many other biopharmaceutical companies, is likely to be highly volatile. Factors
such as the results of preclinical studies and clinical trials by the Company or
its competitors, other evidence of the safety or efficacy of products of the
Company or its competitors, announcements of technological innovations or new
commercial products by the Company or its competitors, governmental regulation,
changes in reimbursement policies, health care legislation, developments in
patent or other proprietary rights, developments in the Company's relationships
with existing and future collaborative partners, if any, public concern as to
the safety and efficacy of products developed by the Company, fluctuations in
the Company's operating results, and general market conditions may have a
significant impact on the market price of the Common Stock.
CONTROL BY EXISTING STOCKHOLDERS; ANTI-TAKEOVER PROVISIONS
Upon the completion of this offering, certain current stockholders of the
Company, including Dr. Maddon and stockholders affiliated with Tudor Investment
Corporation and Weiss, Peck & Greer, will beneficially own or control a
substantial portion of the outstanding shares of Common Stock and therefore may
have the ability, acting together, to elect all of the Company's directors, to
determine the outcome of most corporate actions requiring stockholder approval
and otherwise control the business of the Company. Such control could have the
effect of delaying or preventing a change in control of the Company and
consequently adversely affect the market price of the Common Stock. In addition,
the Company's Board of Directors is authorized to issue from time to time shares
of Preferred Stock, without stockholder authorization, in one or more designated
series or classes. The issuance of Preferred Stock, as well as certain
provisions in certain of the Company's stock options which provide for
acceleration of exercisability upon a change of control of the Company and
certain provisions of the Delaware General Corporation Law (Section 203, in
particular), could make the possible takeover of the Company or the removal of
the Company's management more difficult, discourage hostile bids for control of
the Company in which
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<PAGE>
stockholders may receive a premium for their shares of Common Stock or otherwise
dilute the rights of holders of Common Stock and depress the market price of the
Common Stock. See "Principal Stockholders" and "Description of Capital Stock."
FUTURE SALES OF COMMON STOCK; REGISTRATION RIGHTS; POSSIBLE ADVERSE EFFECT ON
FUTURE MARKET PRICE
A substantial number of outstanding shares of Common Stock and shares of
Common Stock issuable upon exercise of outstanding options and warrants will
become eligible for future sale in the public market at prescribed times. Sales
of substantial numbers of shares of Common Stock in the public market following
this offering could adversely affect prevailing market prices. The Securities
and Exchange Commission (the "Commission") has proposed an amendment to Rule 144
under the Securities Act, that if adopted, would permit certain shares to be
sold one year earlier than otherwise provided by the current version of Rule
144. Commencing one year after the date of this Prospectus, each stockholder who
purchased shares of the Company's stock prior to this offering (which
stockholders hold, as of September 30, 1996, 6,554,553 shares of Common Stock
and have the right to acquire 260,455 shares of Common Stock upon the exercise
of outstanding warrants) is entitled to certain rights with respect to the
registration of such shares of Common Stock for offer or sale to the public. The
Company plans to file a Form S-8 registration statement registering shares
issuable pursuant to the Company's stock option plans. Any sales by existing
shareholders or holders of options or warrants may have an adverse effect on the
Company's ability to raise needed capital and may adversely affect the market
price of the Common Stock. See "Description of Capital Stock," "Shares Eligible
for Future Sale" and "Underwriting."
DILUTION
The initial public offering price will be substantially higher than the net
tangible book value per share of the Company which, at September 30, 1996, was
$0.25 per share. Investors purchasing shares of Common Stock in this offering
will suffer immediate, substantial net tangible book value dilution of $9.28 per
share, assuming an initial public offering price of $12.00 per share. In
addition, this dilution will be increased to the extent that holders of
outstanding options and warrants to purchase Common Stock at prices below the
net tangible book value per share of the Company after this offering exercise
such options or warrants. See "Dilution."
ABSENCE OF DIVIDENDS
The Company has never paid any cash dividends on its Common Stock and does
not anticipate paying cash dividends in the foreseeable future. The Company
currently intends to retain earnings, if any, for the development of its
business. In addition, the Company has entered into certain capitalized leases
that contain covenants which indirectly restrict the Company's ability to pay
dividends. See "Dividend Policy."
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USE OF PROCEEDS
The net proceeds to the Company from the sale of the 2,000,000 shares of
Common Stock offered hereby, at an assumed initial public offering price of
$12.00 per share and after deducting the underwriting discount and estimated
expenses payable by the Company, are estimated to be approximately $21,570,000
($24,918,000 if the Underwriters' over-allotment option is exercised in full).
The Company intends to use the net proceeds to fund clinical trials of its
leading product candidates, research and development, in-licensing of late-stage
technology and for working capital and general corporate purposes.
The Company believes that the net proceeds of this offering, together with
the Company's present capital resources, should be sufficient to fund operations
through the end of 1998 based on the Company's current operating plan. No
assurance can be given that there will be no change that would consume the
Company's liquid assets before such time. Thereafter, the Company will require
substantial funds in addition to the proceeds of this offering to conduct
development activities, preclinical studies, clinical trials and other
activities relating to the commercialization of any potential products. The
Company anticipates that these funds will be obtained from external sources and
intends to seek additional financing to fund future operations. There can be no
assurance, however, that the Company will be able to negotiate such arrangements
or obtain the additional funds it will require on acceptable terms, if at all.
In addition, the Company's cash requirements may vary materially from those
now planned because of results of research and development and product testing,
potential relationships with in-licensors and collaborators, changes in the
focus and direction of the Company's research and development programs,
competitive and technological advances, the cost of filing, prosecuting,
defending and enforcing patent claims, the regulatory approval process,
manufacturing, marketing and other costs associated with commercialization of
products following receipt of regulatory approvals and other factors. The
Company's lease for all of its facilities expires in April 1998. If the Company
elects to move to a new location, it may incur substantial expenses for
leasehold improvements and relocation costs. If the Company renews its current
lease, certain costs will be incurred to enhance its manufacturing capabilities.
Pending such uses, the net proceeds from this offering will be temporarily
invested by the Company in short-term, interest bearing investment grade
securities.
DIVIDEND POLICY
The Company has not paid any dividends since its inception and presently
anticipates that all earnings, if any, will be retained for development of the
Company's business and that no dividends on its Common Stock will be declared in
the foreseeable future.
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CAPITALIZATION
The following table sets forth the capitalization of the Company at
September 30, 1996 and as adjusted as described below. This table should be read
in conjunction with the Company's Financial Statements and related Notes
included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
--------------------------
<S> <C> <C>
ACTUAL AS ADJUSTED(1)
---------- --------------
<CAPTION>
(IN THOUSANDS)
<S> <C> <C>
Long-term portion of capital lease obligations........................................ $ 155 $ 155
---------- --------------
Stockholders' equity:
Preferred Stock, $.001 par value; 20,000,000 shares authorized:
Series A Preferred Stock; 4,000,000 shares designated; 2,308,000 shares issued and
outstanding, actual; and no shares issued and outstanding, as adjusted............ 2 --
Series B Preferred Stock; 2,500,000 shares designated; 1,982,830 shares issued and
outstanding, actual; and no shares issued and outstanding, as adjusted............ 2 --
Series C Preferred Stock; 3,750,000 shares designated; 1,388,996 shares issued and
outstanding, actual; and no shares issued and outstanding, as adjusted............ 1 --
Common Stock, $.0013 par value, 40,000,000 shares authorized, 2,294,675 shares issued
and outstanding, actual; and 8,554,553 shares issued and outstanding, as
adjusted(2)......................................................................... 3 11
Additional paid-in capital............................................................ 22,799 44,366
Deficit accumulated during the development stage...................................... (21,139) (21,139)
---------- --------------
Total stockholders' equity.......................................................... 1,668 23,238
---------- --------------
Total capitalization.............................................................. $ 1,823 $ 23,393
---------- --------------
---------- --------------
</TABLE>
- ------------------------
(1) Assumes (i) the sale of 2,000,000 shares of Common Stock offered hereby at
an assumed initial public offering price of $12.00 per share and the receipt
of the net proceeds therefrom after deducting the underwriting discount and
estimated offering expenses and (ii) conversion of all outstanding shares of
the Company's Preferred Stock into an aggregate of 4,259,878 shares of
Common Stock pursuant to their terms. See "Use of Proceeds" and "Description
of Capital Stock."
(2) Excludes as of September 30, 1996: (i) 1,791,236 shares subject to
outstanding options at a weighted average exercise price of $4.86 per share,
of which options to purchase 686,552 shares at a weighted average exercise
price of $4.16 per share were exercisable; (ii) 260,455 shares of Common
Stock reserved for issuance upon the exercise of outstanding warrants at an
exercise price of $6.67 per share, all of which were exercisable; (iii)
62,775 shares subject to options to be granted prior to the completion of
this offering at an exercise price equal to the initial public offering
price; and, (iv) 750,000 shares available for future issuance under the
Company's stock option plans.
18
<PAGE>
DILUTION
The net tangible book value of the Company as of September 30, 1996 was
$1,668,000 or $0.25 per share. Net tangible book value per share is determined
by dividing the net tangible book value of the Company (total tangible assets
less total liabilities) by the number of shares of Common Stock outstanding (on
a pro forma basis to give effect to the conversion of all outstanding shares of
Preferred Stock). Without taking into account any changes in the net tangible
book value after September 30, 1996, other than to give effect to the sale of
the 2,000,000 shares of Common Stock offered hereby (at an assumed initial
public offering price of $12.00 per share) and the application of the net
proceeds therefrom, the pro forma net tangible book value of the Company at
September 30, 1996 would have been $23,238,000, or $2.72 per share. This
represents an immediate increase in net tangible book value of $2.47 per share
to existing stockholders and an immediate dilution in net tangible book value of
$9.28 per share to new investors. The following table illustrates this per share
dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share.............. $ 12.00
Net tangible book value per share before offering.......... $ 0.25
Increase in net tangible book value per share attributable
to
new investors............................................ 2.47
---------
Pro forma net tangible book value per share after offering... 2.72
---------
Dilution per share to new investors.......................... $ 9.28
---------
---------
</TABLE>
The following table sets forth, on the pro forma basis described above, as
of September 30, 1996 the number and percentage of shares of Common Stock
purchased from the Company, the total cash consideration (with respect to the
new investors, at an assumed initial public offering price of $12.00 per share),
and percentage of total cash consideration paid to the Company and the average
price per share paid by existing stockholders and new investors:
<TABLE>
<CAPTION>
TOTAL CASH CONSIDERATION
SHARES PURCHASED
----------------------- -------------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Existing stockholders............................ 6,554,553 76.6% $ 22,781,000 48.7% $ 3.48
New investors.................................... 2,000,000 23.4 24,000,000 51.3 12.00
---------- ----- ------------- -----
Total...................................... 8,554,553 100.0% $ 46,781,000 100.0%
---------- ----- ------------- -----
---------- ----- ------------- -----
</TABLE>
The foregoing tables do not assume the exercise of outstanding options or
warrants. At September 30, 1996, there were outstanding options to purchase
1,791,236 shares of Common Stock under the Company's stock option plans at a
weighted average exercise price of $4.86 per share, and outstanding warrants to
purchase 260,455 shares of Common Stock at a price of $6.67 per share. The
exercise of such options and warrants would result in further dilution to new
investors. In addition, (i) effective prior to the completion of this offering,
the Company plans to grant options to purchase 62,775 shares to employees having
an exercise price equal to the initial public offering price in this offering
and (ii) following the completion of this offering, there will be 750,000 shares
of Common Stock reserved for future issuance under the Company's stock option
plans. See "Capitalization," "Management--Stock Option Plans" and "Description
of Capital Stock."
19
<PAGE>
SELECTED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The selected financial data presented below with respect to the balance
sheet data as of December 31, 1994 and 1995 and September 30, 1996 and with
respect to the statement of operations data for each of the three years in the
period ended December 31, 1995, for the nine months ended September 30, 1996 and
for the period from December 1, 1986 (inception) to September 30, 1996 are
derived from the Company's financial statements, included elsewhere in this
Prospectus, which have been audited by Coopers & Lybrand L.L.P. The selected
financial data presented below with respect to the balance sheet data as of
December 31, 1991, 1992 and 1993 and with respect to the statement of operations
data for each of the years ended December 31, 1992, and November 30, 1991 and
the one month ended December 31, 1991 are derived from the Company's audited
financial statements, not included in this Prospectus. The selected financial
data presented below with respect to the statement of operations data for the
nine months ended September 30, 1995 have been derived from the Company's
unaudited financial statements included elsewhere in this Prospectus. Operating
results for the nine months ended September 30, 1996 are not necessarily
indicative of results that may be expected for the entire year ending December
31, 1996. The data set forth below should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Financial Statements and related Notes included elsewhere in
this Prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ONE MONTH
ENDED ENDED YEARS ENDED DECEMBER 31, SEPTEMBER 30,
NOVEMBER 30, DECEMBER 31, ------------------------------------------ --------------------
1991 1991(1) 1992 1993 1994 1995 1995 1996
------------- ------------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Revenues:
Research grants.......... $ 55 $ 8 $ 67 $ 84 $ 504 $ 725 $ 502 $ 268
Product sales............ 77 -- 38 50 52 50 40 67
Interest income.......... 86 7 32 53 108 46 44 91
------------- ------------- --------- --------- --------- --------- --------- ---------
Total revenues......... 218 15 137 187 664 821 586 426
------------- ------------- --------- --------- --------- --------- --------- ---------
Expenses:
Research and
development............ 957 53 1,207 1,547 2,859 3,853 2,585 2,654
General and
administrative......... 665 45 942 748 878 1,094 790 984
Interest expense......... 62 4 59 38 50 87 53 40
Depreciation and
amortization........... 207 9 151 249 289 291 229 230
------------- ------------- --------- --------- --------- --------- --------- ---------
Total expenses......... 1,891 111 2,359 2,582 4,076 5,325 3,657 3,908
------------- ------------- --------- --------- --------- --------- --------- ---------
Net loss................... $ (1,673) $ (96) $ (2,222) $ (2,395) $ (3,412) $ (4,504) $ (3,071) $ (3,482)
------------- ------------- --------- --------- --------- --------- --------- ---------
------------- ------------- --------- --------- --------- --------- --------- ---------
Pro forma net loss per
common share(2).......... $ (0.73) $ (0.57)
--------- ---------
--------- ---------
Pro forma weighted average
common shares
outstanding(2)........... 6,135 6,135
<CAPTION>
DECEMBER 1,
1986
(INCEPTION)
TO
SEPTEMBER 30,
1996
-------------
<S> <C>
STATEMENT OF OPERATIONS
DATA:
Revenues:
Research grants.......... $ 1,735
Product sales............ 358
Interest income.......... 633
-------------
Total revenues......... 2,726
-------------
Expenses:
Research and
development............ 15,505
General and
administrative......... 6,257
Interest expense......... 440
Depreciation and
amortization........... 1,663
-------------
Total expenses......... 23,865
-------------
Net loss................... $ (21,139)
-------------
-------------
Pro forma net loss per
common share(2)..........
Pro forma weighted average
common shares
outstanding(2)...........
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------------------------------------
1991 1992 1993 1994 1995
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents....................................... $ 1,640 $ 1,351 $ 2,137 $ 2,275 $ 559
Working capital................................................. 1,412 837 1,882 2,019 19
Total assets.................................................... 2,366 1,976 2,858 3,489 1,736
Capital lease obligations and deferred lease liability,
long-term portion............................................. 250 105 75 235 213
Total stockholders' equity...................................... 1,864 1,547 2,523 2,827 852
<CAPTION>
SEPTEMBER 30,
1996
---------------
<S> <C>
BALANCE SHEET DATA:
Cash and cash equivalents....................................... $ 1,746
Working capital................................................. 894
Total assets.................................................... 2,841
Capital lease obligations and deferred lease liability,
long-term portion............................................. 181
Total stockholders' equity...................................... 1,668
</TABLE>
- ------------------------
(1) Effective January 1, 1992, the Company changed its fiscal year end from
November 30 to December 31.
(2) See Note 2 to the Company's Financial Statements for information concerning
computation of the pro forma per share data.
20
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
Progenics is a biopharmaceutical company focusing on the development and
commercialization of innovative products for the treatment and prevention of
cancer and viral diseases. The Company commenced principal operations in late
1988 and since that time has been engaged primarily in research and development
efforts, development of its manufacturing capabilities and organizational
efforts, including recruitment of scientific and management personnel and
raising capital. In order to commercialize the principal products that the
Company has under development, the Company will need to address a number of
technological challenges and comply with comprehensive regulatory requirements.
Accordingly, it is not possible to predict the amount of funds that will be
required or the length of time that will pass before the Company receives
revenues from sales of any of its products. To date, the Company has received
limited revenues from the sale of research reagents. The Company expects that
sales of research reagents in the future will not significantly increase over
current levels. The Company's other sources of revenues to date have been
research grants related to the Company's HIV programs and interest income.
To date, substantially all of the Company's expenditures have been for
research and development activities. The Company expects that its research and
development expenses will be significantly higher during the balance of 1996 and
in future years as its principal research and development programs progress and
the Company makes filings for related regulatory approvals. The Company has
incurred losses since its inception and had an accumulated deficit of
$21,139,000 at September 30, 1996. The Company has financed its operations
primarily through the private sale and issuance of equity securities. The
Company will require additional funds to complete the development of its
products, to fund the cost of clinical trials, and to fund operating losses
which are expected to continue for the foreseeable future. The Company does not
expect its products under development to be commercialized for the next several
years.
RESULTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1995 AND 1996
Revenues from research grants decreased from $502,000 for the nine months
ended September 30, 1995 to $268,000 for the nine months ended September 30,
1996. The decrease resulted from a lower level of research grant funding in the
nine months ended September 30, 1996. Sales of research reagents increased from
$40,000 for the nine months ended September 30, 1995 to $67,000 for the nine
months ended September 30, 1996 resulting from increased orders for such
reagents during the first three quarters of 1996. Interest income increased from
$44,000 for the nine months ended September 30, 1995 to $91,000 for the nine
months ended September 30, 1996 primarily due to the investment of $5,675,000 in
net proceeds received from the Company's sale of preferred stock and warrants in
the fourth quarter of 1995 and the first quarter of 1996.
Research and development expenses increased from $2,585,000 for the nine
months ended September 30, 1995 to $2,654,000 for the nine months ended
September 30, 1996. The increase was principally due to additional costs of
manufacturing GMK in 1996 for the Company's Phase III clinical trials, partially
offset by reductions in scientific staff in the Company's HIV department and by
a decrease in consulting expenses relating to procedures for manufacturing GMK.
General and administrative expenses increased from $790,000 for the nine
months ended September 30, 1995 to $984,000 for the nine months ended September
30, 1996. The increase was principally due to an increase in payroll and related
costs to support the Company's growth. Interest expense incurred on the
Company's capital lease obligations decreased from $53,000 for the nine months
ended September 30, 1995 to $40,000 for the nine months ended September 30,
1996. Depreciation and amortization remained
21
<PAGE>
relatively unchanged from $229,000 for the nine months ended September 30, 1995
to $230,000 for the nine months ended September 30, 1996.
The Company's net loss for the nine months ended September 30, 1995 was
$3,071,000 compared to a net loss of $3,482,000 for the nine months ended
September 30, 1996.
YEARS ENDED DECEMBER 31, 1994 AND 1995
Revenues from research grants increased from $504,000 in 1994 to $725,000 in
1995. The increase for 1995 resulted from a higher level of research grant
funding in that year. Sales of research reagents remained relatively unchanged
from $52,000 in 1994 to $50,000 in 1995. Interest income decreased from $108,000
in 1994 to $46,000 in 1995 due to the reduction of cash available for investing
as the Company continued to fund its operations.
Research and development expenses increased from $2,859,000 for 1994 to
$3,853,000 for 1995. The increase in 1995 primarily resulted from the Company's
preparation for clinical trials for GMK, including outside consulting expenses.
The Company hired a new Vice President of Medical Affairs in October 1994 and,
during 1995, hired a Manager of Clinical Trials and other related staff. In
addition, the Company incurred expenses in 1995 related to a new license and
supply agreement with Aquila. Rent expense also increased in 1995 resulting from
occupation of the Company's expanded laboratory space for the full fiscal year;
the expanded space was occupied at the end of the second quarter of 1994. These
increases were partially offset by a reduction in scientific staff in the
Company's HIV department during the second half of 1995.
General and administrative expenses increased from $878,000 in 1994 to
$1,094,000 for 1995. The increase in 1995 was principally due to additional
legal fees relating to in-licensing activities, filing new patent applications,
personnel expenses, additional rent expense resulting from the expansion of the
Company's office space at the end of the second quarter of 1994, and increased
insurance costs related, in part, to coverage for the Company's clinical trials.
Interest expense increased from $50,000 in 1994 to $87,000 in 1995 due, in part,
to the financing of additional equipment under capitalized leases during 1994
and 1995. The Company also recognized interest expense of $24,000 on amounts
advanced to the Company during 1995 in the aggregate principal amount of
$1,200,000. Depreciation and amortization remained relatively unchanged from
$289,000 in 1994 to $291,000 in 1995.
The Company's net loss in 1994 was $3,412,000 compared to a net loss of
$4,504,000 in 1995.
YEARS ENDED DECEMBER 31, 1993 AND 1994
Revenues from research grants increased from $84,000 in 1993 to $504,000 in
1994, primarily due to an increase in the number of research grants from which
the Company earned grant revenue in 1994. Interest income increased from $53,000
in 1993 to $108,000 in 1994, primarily due to the investment of $3,597,000 in
net proceeds received from the exercise of Series B Preferred Stock warrants
during 1994.
Research and development expenses increased from $1,547,000 in 1993 to
$2,859,000 in 1994. Sales of research reagents remained relatively unchanged
from $50,000 in 1993 to $52,000 in 1994. The increase in 1994 was partly due to
the expansion of the Company's research and development program to include the
development of cancer vaccine products. The Company also intensified its HIV
program efforts during 1994, adding additional scientific and quality
assurance/quality control staff, including a Vice President of Medical Affairs
in October 1994, purchased more laboratory supplies, entered into new consulting
agreements and incurred additional rent expense by expanding its laboratory
space at the end of the second quarter of 1994.
General and administrative expenses increased from $748,000 in 1993 to
$878,000 in 1994. In 1994, the Company incurred additional rent expense due to
the expansion of its office space at the end of the second quarter of 1994, and
incurred additional administrative expenses to support the Company's
22
<PAGE>
increased level of research and development. Interest expense increased from
$38,000 in 1993 to $50,000 in 1994, primarily due the acquisition of additional
equipment through capitalized leases as the Company expanded its facilities.
Depreciation and amortization increased from $249,000 in 1993 to $289,000 in
1994 primarily due to the expansion of the Company's laboratory facilities and
the acquisition of additional equipment.
The Company's net loss in 1993 was $2,395,000 compared to a net loss of
$3,412,000 in 1994.
LIQUIDITY AND CAPITAL RESOURCES
The Company has funded its operations since inception primarily through
private placements of equity securities, which provided aggregate cash proceeds
of $22,781,000 (including loans that were subsequently converted into equity
securities). Through September 30, 1996, the Company had also received cash
proceeds of $1,656,000 from research grants, $633,000 from interest on
investments and $349,000 from the sale of research reagents. Through September
30, 1996, the Company had financed $1,228,000 of equipment purchases through
capitalized leases and a promissory note.
During the fourth quarter of 1995 and the first quarter of 1996, the Company
raised $5,675,000 in net proceeds from a private placement of shares of the
Company's Series C Preferred Stock in a unit offering in which each $20.00 unit
("Series C Unit") consisted of four shares of Series C Preferred Stock and one
warrant entitling the holder to purchase one share of Series C Preferred Stock
for $5.00 any time within five years of the date of issuance ("Series C
Warrant"). In addition, during December 1995, a note payable in the aggregate
principal amount of $1,200,000, plus accrued and unpaid interest of $24,000 was
converted into Series C Units. At September 30, 1996, there were 347,249 Series
C Warrants outstanding which if exercised in full would result in $1,736,000 of
net proceeds to the Company and the issuance of 260,455 shares of Common Stock.
As of September 30, 1996, the Company had cash and cash equivalents totaling
$1,746,000 compared with $559,000 at December 31, 1995. Planned operations for
the remainder of 1996 currently contemplate expenditures for capital assets of
approximately $150,000, mainly consisting of laboratory equipment and leasehold
improvements to expand the Company's manufacturing capabilities. The Company
plans to finance a significant portion of equipment purchases through
capitalized leases. However, there can be no assurance that the Company will
successfully enter into such new arrangements. The Company's lease for all of
its facilities expires in April 1998. If the Company elects to move to a new
location, it may incur substantial expenses for leasehold improvements and
relocation costs. If the Company renews its current lease, certain costs will be
incurred to enhance its manufacturing capabilities.
The Company believes that the net proceeds of this offering, together with
the Company's present capital resources, should be sufficient to fund operations
through the end of 1998 based on the Company's current operating plan. No
assurance can be given that there will be no change that would consume the
Company's liquid assets before such time. Thereafter, the Company will require
substantial funds to conduct development activities, preclinical studies,
clinical trials and other activities relating to the commercialization of any
potential products. In addition, the Company's cash requirements may vary
materially from those now planned because of results of research and development
and product testing, potential relationships with in-licensors and
collaborators, changes in the focus and direction of the Company's research and
development programs, competitive and technological advances, the cost of
filing, prosecuting, defending and enforcing patent claims, the regulatory
approval process, manufacturing and marketing and other costs associated with
the commercialization of products following receipt of regulatory approvals and
other factors.
After the completion of the offering, the Company will have no committed
external sources of capital, and, as discussed above, expects no significant
product revenues for a number of years. Therefore, the Company intends to seek
additional financing to fund future operations. There can be no assurance,
however, that the Company will be able to obtain the additional funds it will
require on acceptable terms, if
23
<PAGE>
at all. If adequate funds are not available, the Company may be required to
delay, reduce the scope of or eliminate one or more of its research or
development programs; to obtain funds through arrangements with collaborative
partners or others that may require the Company to relinquish rights to certain
technologies, product candidates or products that the Company would otherwise
seek to develop or commercialize itself; or to license the rights to such
products on terms that are less favorable to the Company than might otherwise be
available. See "Risk Factors--History of Operating Losses and Accumulated
Deficit; No Product Revenue and Uncertainty of Future Profitability" and "--Need
for Additional Financing and Uncertain Access to Capital Funding."
IMPACT OF THE ADOPTION OF RECENTLY ISSUED ACCOUNTING STANDARD
The Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS
123") in October 1995. See Note 2 to the Company's Financial Statements included
elsewhere in this Prospectus for a discussion of the impact of adoption of SFAS
123.
24
<PAGE>
BUSINESS
OVERVIEW
Progenics is a biopharmaceutical company focusing on the development and
commercialization of innovative products for the treatment and prevention of
cancer and viral diseases. The Company applies its immunology expertise to
develop biopharmaceuticals that induce an immune response or that mimic natural
immunity in order to fight cancers, such as malignant melanoma, and viral
diseases, such as HIV infection. Progenics' most advanced product candidate,
GMK, is a therapeutic vaccine that is undergoing pivotal Phase III clinical
trials for the treatment of melanoma, a deadly form of skin cancer. Progenics'
second vaccine product, MGV, is being developed for the treatment of various
cancers, and recently entered Phase I/II clinical trials. Based on its
participation in the discoveries of two major receptors for HIV, the Company is
engaged in research and development of several therapeutic products designed to
block entry of the virus into human immune system cells. Progenics has completed
preclinical studies on two HIV product candidates, PRO 542 and PRO 367, and
plans to initiate Phase I/II clinical trials of these products in 1997.
Progenics' most advanced product candidates are based on two proprietary
technologies: ganglioside conjugate vaccine technology, which the Company uses
in its cancer program; and UnAB technology, which the Company uses in its HIV
program. The Company has exclusively licensed from Sloan-Kettering several
ganglioside conjugate vaccines designed to stimulate the immune system to
destroy cancer cells. The Company applies its UnAB technology to produce
antibody-like molecules designed to neutralize or destroy HIV or HIV-infected
cells.
CANCER THERAPEUTICS
GMK is a therapeutic cancer vaccine designed to prevent recurrence of
melanoma in patients who are at risk of relapse after surgery. Developed at
Sloan-Kettering, GMK is composed of a ganglioside antigen which is abundant in
melanoma cells, conjugated to an immunogenic carrier protein and combined with
an adjuvant (an immunological stimulator). In August 1996, the Company commenced
the first of three pivotal, randomized, multicenter Phase III clinical trials of
GMK. These studies are being conducted in the United States by ECOG and SWOG,
which are cooperative cancer research groups supported by the NCI. Two
international Phase III clinical trials will be initiated in 1997 and will be
conducted in Europe by the ICR of the United Kingdom and the EORTC.
MGV, the Company's second ganglioside conjugate vaccine, incorporates two
ganglioside antigens that are abundant in a wide range of cancer cells. These
cancers include colorectal cancer, lymphoma, small cell lung cancer, sarcoma,
gastric cancer, neuroblastoma and melanoma. In September 1996, MGV entered Phase
I/II clinical trials at Sloan-Kettering.
HIV THERAPEUTICS
The Company is pursuing two approaches based on its HIV receptor technology
in the research and development of products designed to block viral entry into
human immune system cells. The Company's UnAB approach is based on the CD4
receptor while its HIV fusion approach is based on a recently discovered second
receptor for the virus, CKR-5.
Progenics is developing PRO 542 to selectively target HIV and prevent it
from infecting healthy cells by binding to the sites on the virus that are
required for entry into the cell. PRO 542 is based on Progenics' UnAB technology
and has been shown IN VITRO to recognize a wide range of HIV strains, including
those most prevalent in the United States and the rest of the world. PRO 542 is
being developed as an immunotherapy to treat HIV-positive individuals and as an
immunoprophylactic treatment to prevent infection of individuals who have been
exposed to the virus. The Company plans to file an IND covering PRO 542 by the
end of 1996 and initiate Phase I/II clinical trials in 1997.
25
<PAGE>
Progenics is developing PRO 367 as a therapeutic agent designed to kill
HIV-infected cells. PRO 367 consists of a UnAB molecule linked to a therapeutic
radioisotope and is designed to bind to and destroy HIV-infected cells by
delivering a lethal dose of radioactivity. The Company plans to begin Phase I/II
clinical trials of PRO 367 in 1997.
In June 1996, the Company's scientists in collaboration with researchers at
ADARC described in an article published in NATURE the discovery of a second
receptor for HIV, CKR-5. This receptor enables fusion of HIV with the cell
membrane, entry of the viral genetic information into the cell and initiation of
viral replication. The Company is using its proprietary ProSys assay in a
program to discover novel therapeutics that specifically inhibit the interaction
of HIV with the CKR-5 receptor, thereby blocking viral fusion and entry.
THE HUMAN IMMUNE SYSTEM
The human immune system functions to protect the body from disease by
specifically recognizing and destroying foreign invaders, including viruses and
bacteria. In addition, the immune system is capable of recognizing and
eliminating abnormal cells in the body, such as cancer cells and cells infected
with viruses and bacteria. White blood cells, particularly B and T lymphocytes,
have the ability to recognize antigens made by these infectious agents and
abnormal cells and react to them. For example, B lymphocytes produce antibodies
that recognize specific antigens. Antibodies can bind to these antigens and
neutralize or eliminate infectious agents and cancer cells. Vaccines can induce
the production of antibodies against antigens on infectious agents and abnormal
cells and thereby protect the body from illness. Vaccines are also being
developed as therapeutics to fight ongoing diseases. In addition, genetic
engineering techniques have enabled the production of antibodies or
antibody-like molecules in the laboratory. These genetically designed antibody
molecules may function in situations where the immune response is failing or not
present by mimicking the body's own immune response.
PRODUCT DEVELOPMENT
The Company applies its expertise in immunology to the development of
therapeutic biopharmaceuticals that use components of the immune system,
particularly antibodies, to fight diseases. The Company's two principal programs
are directed towards cancer and HIV. In the case of cancer, the Company is
developing vaccine products that are designed to induce specific antibody
responses to cancer antigens in order to fight certain cancers. In the case of
HIV, the Company is developing therapeutic products by genetically engineering
molecules that function as antibodies and selectively target HIV and
HIV-infected cells for neutralization or destruction. The Company also is
actively engaged in research and discovery of therapeutic products based on a
second HIV receptor, CKR-5, and its role in viral fusion and entry.
26
<PAGE>
The following table summarizes the status of the principal development
programs, product candidates and products of the Company:
<TABLE>
<CAPTION>
PROGRAM/PRODUCT INDICATION/USE STATUS(1)
- ---------------------------------- ---------------------------------- ----------------------------------
<S> <C> <C>
CANCER THERAPEUTICS
GMK Vaccine for melanoma Pivotal Phase III clinical trials
ongoing
MGV Vaccine for colorectal cancer, Phase I/II clinical trials ongoing
lymphoma, small cell lung cancer,
sarcoma, gastric cancer,
neuroblastoma and melanoma
HIV THERAPEUTICS
PRO 542 HIV therapy/prophylaxis Phase I/II clinical trials
expected to commence in 1997
PRO 367 HIV therapy Phase I/II clinical trials
expected to commence in 1997
CKR-5/Fusion HIV therapy Research
(using ProSys)
ProVax HIV vaccine Research
ASSAYS, DRUG SCREENING PROGRAM AND
REAGENTS
ONCOTECT GM Clinical assay for cancer In clinical investigational use
prognosis
HIV Attachment Drug Screen High-throughput screening to In use
identify small-molecule drugs to
treat HIV infection
sCD4 Research reagent On market
gp120 Research reagent On market
</TABLE>
--------------------------
(1) "Research" includes initial research related to specific molecular
targets, synthesis of new chemical entities and assay development for
the identification of lead compounds.
Phase I-III clinical trials denote safety and efficacy tests in humans
as follows:
Phase I: Evaluation of safety.
Phase II: Evaluation of safety, dosage and efficacy.
Phase III: Larger scale evaluation of safety and efficacy potentially
requiring larger patient numbers, depending on
the clinical indication for which marketing approval is sought.
See "Business--Government Regulation."
27
<PAGE>
CANCER THERAPEUTICS
The Company is currently developing two therapeutic cancer vaccines, one
specifically for melanoma and one for a variety of cancers, including colorectal
cancer, lymphoma, small cell lung cancer, sarcoma, gastric cancer, neuroblastoma
and melanoma.
To date, the principal therapies for cancer have been surgery, radiation and
chemotherapy. In contrast to these invasive and toxic approaches, cancer
vaccines are now being developed to stimulate the natural defense mechanisms of
the immune system to fight cancer. Unlike traditional infectious disease
vaccines that are used to prevent infection in the general population, most
cancer vaccines are therapeutic, meaning that they are being developed to
prevent recurrence of cancer in people whose cancer is in remission. In some
cases, cancer vaccines are also being designed for use in the prevention of
cancer in individuals who are at high risk for the disease.
A major challenge in cancer vaccine development is that the natural human
immune response generally does not produce sufficient antibodies to fight cancer
cells because the immune system often does not recognize the difference between
normal cells and cancer cells. Consequently, a primary objective in the
development of cancer vaccines is to train the immune system to recognize cancer
cells as a threat. If this can be achieved and the immune system can produce
sufficient antibodies to the cancer, then the recurrence of the cancer may be
prevented. Most cancer vaccines of parties other than the Company that are in
clinical development consist of dead cancer cells or crude extracts from cancer
cells. The limitations of these approaches include the inability to identify the
active components of the vaccine and to measure specific immune responses.
PROGENICS' TECHNOLOGY: GANGLIOSIDE CONJUGATE VACCINES
Progenics' cancer vaccine program is different from other approaches in that
it involves the use of purified gangliosides as cancer antigens. Gangliosides
are chemically-defined molecules which are composed of carbohydrate and lipid
components. Certain gangliosides are usually found in low amounts in normal
human tissue, but are abundant in certain cancers, such as melanoma, colorectal
cancer, lymphoma, small cell lung cancer, sarcoma, gastric cancer and
neuroblastoma.
Gangliosides alone, however, do not normally trigger an immune response in
humans. To overcome this, Progenics attaches gangliosides to large, highly
immunogenic carrier proteins to form "conjugate" vaccines designed to trigger
specific immune responses to ganglioside antigens. The technique of conjugating
carbohydrate molecules to carrier proteins has been successfully used by others
in the past to create effective vaccines for certain infectious diseases. For
example, conjugate vaccines have been approved for marketing by the FDA and are
currently administered to infants and children to prevent certain bacterial
infections. To further augment the immune response to gangliosides, Progenics
adds a potent immunological stimulator known as an "adjuvant" to its
ganglioside-carrier protein conjugate. The following diagram illustrates the
components of the Company's ganglioside conjugate vaccines.
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[DIAGRAM ILLUSTRATING THE COMPONENTS OF THE COMPANY'S GANGLIOSIDE
CONJUGATE VACCINES]
The Company's ganglioside conjugate vaccines stimulate the immune system to
produce specific antibodies to ganglioside antigens. These antibodies have been
shown IN VITRO to recognize and destroy cancer cells. Based on these tests and
the clinical trial results described below, the Company believes that
vaccination of cancer patients with ganglioside conjugate vaccines will prevent
recurrence of cancer and prolong overall survival.
The Company's cancer vaccines use known amounts of chemically-defined
antigens, not dead cancer cells or crude extracts from cancer cells. As a
result, Progenics is able to measure specific immune responses to the
gangliosides in its vaccines. The Company also believes that there is a reduced
likelihood of variability in its products as compared to vaccines which are
prepared from dead cancer cells or crude extracts from cancer cells or which
require complicated manufacturing processes.
GMK: THERAPEUTIC VACCINE FOR MALIGNANT MELANOMA
Progenics' most advanced product under development is GMK, a proprietary
therapeutic vaccine for melanoma that is currently in pivotal Phase III clinical
trials. GMK is the first cancer vaccine based on a defined cancer antigen to
enter Phase III clinical trials. GMK was initially developed at Sloan-Kettering
and is exclusively licensed to the Company. GMK is designed to prevent
recurrence of melanoma in patients who are at risk of relapse after surgery. GMK
is composed of the ganglioside GM2 conjugated to the carrier protein KLH
(keyhole limpet hemocyanin) and combined with the adjuvant QS-21. QS-21 is the
lead compound in the Stimulon-TM- family of adjuvants developed and owned by
Aquila.
TARGET MARKET
Melanoma is a highly lethal cancer of the skin cells that produce the
pigment melanin. In early stages melanoma is limited to the skin, but in later
stages it spreads to the lungs, liver, brain and other organs. The Company
estimates that there are 300,000 melanoma patients in the U.S. today. The
American Cancer Society estimates that 38,000 patients in the U.S. will be newly
diagnosed with melanoma in 1996. In the U.S., the incidence of melanoma is
increasing at a rate of approximately 6% per year, an increase in incidence that
is faster than that of any other cancer in men and second only to lung cancer in
women. It is estimated that one in 87 Americans will develop melanoma in their
lifetime. Increased exposure to the
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ultraviolet rays of the sun may be an important factor contributing to the
increase in new cases of melanoma.
Melanoma patients are categorized according to the following staging system:
MELANOMA STAGING
<TABLE>
<CAPTION>
STAGE I STAGE II STAGE III STAGE IV
- --------------------- --------------------- --------------------- ---------------------
<S> <C> <C> <C>
- - lesion less than - lesion greater - metastasis to - distant
1.5 mm thickness than 1.5 mm regional draining metastasis
thickness lymph nodes
- - no apparent - local spread from - regional spread
metastasis primary cancer from primary
site cancer site
</TABLE>
GMK is designed for the treatment of patients with Stage II or Stage III
melanoma. It is estimated that these patients comprise about 50% of the total
number of melanoma patients and, accordingly, the Company estimates that there
are currently 150,000 Stage II and III melanoma patients in the U.S. According
to the American Cancer Society, an estimated 60% to 80% of Stage III melanoma
patients will experience recurrence of their cancer and die within five years
after surgery.
CURRENT THERAPIES
Standard treatment for all melanoma patients includes surgical removal of
the cancer. Thereafter, therapy varies depending on the stage of the disease.
For Stage I and II melanoma patients, treatment generally consists of close
monitoring for recurrence. The only approved treatment for Stage III melanoma
patients is high-dose alpha interferon, which received FDA marketing approval
for this indication in December 1995. In a recently reported study, the median
recurrence-free survival period after surgery for patients treated with
high-dose alpha interferon was 20 months versus 12 months for patients who
received no treatment. In addition, the median overall survival period after
surgery was 46 months for the treated group versus 34 months for the untreated
group. However, treatment with high-dose alpha interferon causes substantial
toxicities, requires an intensive treatment over twelve months (intravenous
injections five days a week for the first month followed by subcutaneous
injections three times a week for the remaining eleven months) and costs about
$35,000 per year.
Other approaches for treatment of Stage II or III melanoma patients are
currently under investigation, but none has been approved for marketing. These
experimental therapies include chemotherapy, low-dose alpha interferon and other
vaccines.
CLINICAL TRIALS
GMK entered pivotal Phase III clinical trials in the United States in August
1996. In addition, Progenics plans to initiate two international Phase III
clinical trials of GMK in 1997. GMK is administered in the studies by 12
subcutaneous injections over a two-year period on an out-patient basis.
The ongoing U.S. Phase III trial compares GMK with high-dose alpha
interferon in Stage IIb (advanced Stage II) and Stage III melanoma patients who
have undergone surgery but are at high risk for recurrence. This randomized
trial, which is expected to enroll 850 patients, is being conducted nationally
by ECOG in conjunction with SWOG and other major cancer centers, cooperative
cancer research groups, hospitals and clinics. ECOG and SWOG are leading
cooperative cancer research groups supported by the NCI and are comprised of
several hundred participating hospitals and clinics in the United States. The
primary endpoint of the trial is to compare the recurrence of melanoma in
patients receiving GMK versus in patients receiving high-dose alpha interferon.
The study will also compare quality of life and overall survival of patients in
both groups.
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The second Phase III clinical trial will be a double-blind,
placebo-controlled study in Stage IIb and Stage III melanoma patients who have
undergone surgery but are at high risk for recurrence. This trial will be
conducted by major cancer centers, hospitals and clinics in Europe, Australia,
and New Zealand. In the United Kingdom, the study will be conducted by the ICR,
a major government-sponsored cancer research organization. Patients will be
randomized to receive either GMK or a placebo (because high-dose alpha
interferon has not been approved for use in melanoma in the countries involved
in this trial). The primary endpoint of the trial is to compare the recurrence
of melanoma in patients receiving GMK versus in patients receiving placebo. The
study will also compare overall survival of patients in both groups.
The third Phase III clinical trial will be a randomized study exclusively in
Stage II melanoma patients who have undergone surgery but are at intermediate
risk for recurrence. This trial will be conducted in Europe by the EORTC, the
major cooperative cancer research group in Europe, and in the United States by
ECOG. Patients will be randomized to receive either GMK or observation with no
treatment. The primary endpoint of the trial is to compare the recurrence of
melanoma in patients receiving GMK versus in patients receiving observation with
no treatment. The study will also compare overall survival of patients in both
groups.
A predecessor of GMK, called GM2-BCG, which combined GM2 ganglioside with
the adjuvant BCG, underwent clinical testing at Sloan-Kettering in the late
1980s. In a double-blind, randomized Phase II study in 122 Stage III melanoma
patients, subjects in the treated group received GM2-BCG for six months after
surgery; subjects in the control group received the same regimen with BCG alone.
The median recurrence-free survival period after surgery for patients treated
with GM2-BCG was 33 months versus 17 months for the patients in the control
group. In addition, the median overall survival period after surgery for
patients in the treated group was 70 months versus 30 months for patients in the
control group. Approximately 85% of treated patients developed antibodies to GM2
ganglioside. The presence of these antibodies significantly correlated with
improved recurrence-free and overall survival of patients.
Phase I/II clinical trials of GMK under institutional INDs were conducted at
Sloan-Kettering over the last five years. In these studies, approximately 120
patients, most of whom had Stage III melanoma, were treated with GMK. All
patients receiving GMK at the dose level being used in the current Phase III
trials of GMK developed antibodies to GM2 ganglioside. Patients treated with GMK
had levels of antibody to GM2 ganglioside that were on average four times higher
and also were longer lasting than in patients treated with GM2-BCG in the
GM2-BCG Phase II trial. In addition, GMK was well tolerated by all patients in
these studies, and no clinically significant side effects attributable to the
vaccine were observed.
MGV: THERAPEUTIC VACCINE FOR CERTAIN CANCERS
Progenics' second ganglioside conjugate vaccine in development, MGV, is a
proprietary therapeutic vaccine for cancers which express GD2 or GM2
gangliosides. These cancers include colorectal cancer, lymphoma, small cell lung
cancer, sarcoma, gastric cancer, neuroblastoma and melanoma. MGV has three
components: (i) GM2-KLH (GM2 ganglioside conjugated to KLH); (ii) GD2-KLH (GD2
ganglioside conjugated to KLH); and, (iii) QS-21 adjuvant. MGV is designed to
prevent recurrence of cancer and prolong overall survival of patients after
their cancer has been removed by surgery or reduced by chemotherapy or radiation
therapy.
CLINICAL TRIALS
MGV entered Phase I/II clinical trials in September 1996 under an
institutional IND at Sloan-Kettering. The primary objectives of the study are to
establish the safety of MGV and the ability of the vaccine to induce specific
immune responses to both GD2 and GM2 gangliosides in patients with different
cancer types, beginning with melanoma patients. In addition, a goal of the study
is to optimize the ratio of GD2 and GM2 gangliosides in MGV to be used in future
clinical trials.
The GM2-KLH/QS-21 (GMK) and GD2-KLH/QS-21 components of MGV have each
undergone separate clinical testing. The results of clinical studies with GMK
are discussed above. To date, six melanoma patients have received GD2-KLH/QS-21
alone in Phase I/II clinical trials under an institutional
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IND at Sloan-Kettering. All six subjects developed antibodies to GD2 ganglioside
following vaccination. In addition, the vaccine was well tolerated and no
clinically significant side effects attributable to the vaccine were observed.
Therefore, the Company expects that patients receiving MGV will develop
antibodies to both GD2 and GM2 gangliosides.
HIV THERAPEUTICS
HIV infection causes a slowly progressive deterioration of the immune system
which results in AIDS. AIDS is characterized by a general collapse of the immune
system leading to a wasting syndrome, frequent opportunistic infections, rare
forms of cancer, central nervous system degeneration, and eventual death. HIV
infection is unusual in that individuals testing positive for the virus can
survive for many years without symptoms of the disease. There are three major
routes of transmission of the virus: sexual contact, exposure to
HIV-contaminated blood or blood products and mother-to-child transmission.
HIV specifically infects cells that have the CD4 receptor on their surface
("CD4+"). CD4+ cells are critical components of the immune system, and include T
lymphocytes, monocytes, macrophages and dendritic cells. The deleterious effects
of HIV are largely due to the replication of the virus in CD4+ T lymphocytes and
the resulting destruction of these cells.
HIV-positive individuals display both antibodies and other immune system
responses which are specific to the virus. However, the high fatality rate of
this disease makes it clear that these natural immune system responses do not
provide adequate long-term protection. There are two reasons why these natural
responses are inadequate. First, as described above, the CD4+ T lymphocytes
required to mount an effective immune response against HIV are destroyed,
leaving the immune system too weak to eliminate the virus. Second, HIV displays
a remarkable degree of variability as a result of high rates of mutation that
permit different strains of the virus to escape the immune system response and
progressively replicate throughout the body.
The Company's scientists and their collaborators have made important
discoveries in understanding how HIV enters human cells and initiates viral
replication. In the 1980s, Company scientists in collaboration with researchers
at Columbia University, the ICR and the Centers for Disease Control and
Prevention ("CDC") demonstrated that the initial step of HIV infection involves
the specific attachment of the virus to the CD4 receptor on the surface of human
immune system cells. These researchers also showed that the gp120 glycoprotein
located on the HIV envelope binds with high affinity to the CD4 receptor.
Although these researchers demonstrated that CD4 was necessary for HIV
attachment, this step is not sufficient to enable the virus to enter the cell
and initiate viral replication.
In June 1996, Company scientists in collaboration with researchers at ADARC
described in an article in NATURE the discovery of a second receptor for HIV on
the surface of human immune system cells. This receptor, CKR-5, enables fusion
of HIV with the cell membrane after binding of the virus to the CD4 receptor.
This fusion step results in entry of the viral genetic information into the cell
and subsequent viral replication. Recently, Company scientists in collaboration
with researchers at ADARC demonstrated that it is the gp120 glycoprotein that
binds to the newly discovered CKR-5 receptor as well as to the CD4 receptor.
This process is shown below.
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[DIAGRAM DEPICTING THE GP120 GLYCOPROTEIN BINDING TO THE NEWLY DISCOVERED
CKR-5 RECEPTOR AND THE CD4 RECEPTOR AND ALSO THE FUSION OF THE VIRUS WITH
THE HUMAN CELL MEMBRANE]
PROGENICS' HIV RECEPTOR TECHNOLOGIES: UNABS AND CKR-5/FUSION
Based on the Company's participation in the discoveries of two major
receptors for HIV, Progenics is pursuing two approaches in the research and
development of products designed to block entry of HIV into human immune system
cells. The Company's UnAB approach is based on the CD4 receptor while its HIV
fusion approach is based on a recently discovered second receptor, CKR-5.
Because HIV must first attach to the CD4 receptor to infect human cells, the
Company believes that the part of the gp120 glycoprotein that attaches to the
CD4 receptor must remain constant across all strains of the virus. The gp120
glycoprotein is located on the exterior of both HIV and HIV-infected cells.
Progenics' UnABs incorporate a part of the CD4 receptor into
genetically-engineered molecules that function like antibodies and are designed
to bind specifically to the gp120 glycoprotein of HIV or HIV-infected cells. In
IN VITRO tests, the Company's UnABs have demonstrated the ability to bind with
high affinity to gp120 glycoproteins from a wide range of HIV strains, including
the strains most prevalent in the U.S. and the rest of the world. Because the
Company's UnAB technology is targeted to a part of HIV that must remain constant
in order for the virus to enter cells, the Company believes that its technology
may address the obstacles presented by the high mutation rate of the virus.
Two of the Company's HIV products under development are based on its
proprietary UnAB technology, although they employ the technology in different
ways. PRO 542 is designed to bind to the gp120 glycoprotein located on the virus
itself, thereby preventing it from infecting healthy cells. PRO 367 is designed
to bind to the gp120 glycoprotein located on the exterior of HIV-infected cells
and destroy those cells by delivering a lethal dose of radioactivity. The two
products also differ in that each molecule of PRO 542 has four binding sites for
HIV while each molecule of PRO 367 has two binding sites. See the inside back
cover of this Prospectus for diagrams of these products. In the area of HIV
fusion, the Company is using its proprietary ProSys assay in a program to
discover novel therapeutics that specifically inhibit the interaction of HIV
with the CKR-5 receptor, thereby blocking viral fusion and entry.
TARGET MARKET
Progenics' therapeutic product candidates are designed primarily for use in
asymptomatic HIV-positive individuals. Accordingly, the target population for
these products is patients who are aware of their infection but do not yet have
AIDS. Although there are few signs of disease in an HIV-positive individual
during the asymptomatic period, the virus is replicating in the body by
infecting healthy cells. The World Health Organization estimated that in 1994
more than 700,000 people in the U.S. and 17,000,000 people worldwide were
infected with HIV. The CDC estimated that as of December 1995 more than 190,000
people in the U.S. had AIDS. AIDS is currently the leading cause of death in the
U.S. in men between the ages of 25 and 44 and the third leading cause of death
in the U.S. in women between those ages.
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An additional potential market for the Company's HIV product candidates
consists of individuals who have been exposed to the virus, such as: (i) health
care workers exposed to HIV-contaminated body fluids through accidental
needlestick injuries; and (ii) babies born to HIV-positive women. According to a
recent academic study, in 1990 there were over 250,000 percutaneous needlestick
injuries among U.S. hospital employees. The CDC reported that in 1993 there were
approximately 7,000 children born to HIV-positive women in the U.S.
CURRENT THERAPIES
At present, two classes of products have received FDA marketing approval for
the treatment of HIV infection and AIDS: reverse transcriptase inhibitors and
protease inhibitors. Both types of drugs are inhibitors of viral enzymes and
have shown efficacy in reducing the concentration of HIV in the blood and
prolonging asymptomatic periods in HIV-positive individuals, especially when
administered in combination. However, it is not known whether HIV will develop
resistance to these drugs over time. In addition, the use of these drugs
presents problems of toxic side effects and compliance for some patients.
PRO 542: HIV THERAPY/PROPHYLAXIS
Progenics is developing PRO 542 for the treatment and post-exposure
prevention of HIV infection. PRO 542 is a proprietary UnAB-based product with
four binding sites for the gp120 glycoprotein on HIV. PRO 542 is designed to
neutralize infectious HIV through one of two mechanisms: (i) binding to and
thereby blocking the gp120 glycoprotein; or (ii) binding to and detaching the
gp120 glycoprotein from the virus.
In IN VITRO and EX VIVO tests conducted by Progenics in collaboration with
scientists at ADARC and the CDC, PRO 542 potently neutralized a wide variety of
clinical strains of HIV as well as viruses in the plasma of HIV-positive
individuals. In comparative IN VITRO studies at ADARC using a panel of
neutralizing antibodies to HIV, PRO 542 was found to be more potent and broadly
neutralizing than the antibodies to which it was compared. In further studies at
ADARC, PRO 542 protected severe combined immune deficient ("SCID") mice
transplanted with human peripheral blood lymphocytes against infection by the
three HIV strains tested, including strains of the virus isolated from
HIV-positive individuals.
Progenics plans to file an IND for PRO 542 in 1996 and, subject to its IND
becoming effective, initiate two dose-escalation Phase I/II clinical trials in
1997. The first study will be conducted in HIV-positive adult patients at Mount
Sinai Medical Center and the Bronx V.A. Medical Center, both in New York City.
The second trial will be conducted in HIV-positive children at Baylor College of
Medicine in Houston by the AIDS Clinical Trials Group, ("ACTG"), a leading
cooperative HIV research group supported by the National Institute of Allergy
and Infectious Diseases ("NIAID"). Both trials will measure safety,
pharmacokinetics and antiviral activity of PRO 542.
PRO 367: HIV THERAPY
Progenics is developing PRO 367 as a therapeutic agent designed to destroy
HIV-infected cells. PRO 367 is composed of a proprietary UnAB molecule with two
binding sites for the gp120 glycoprotein linked to a therapeutic radioisotope.
PRO 367 is designed to specifically bind with high affinity to the gp120
glycoprotein on HIV-infected cells and to destroy these cells by delivering a
lethal dose of radioactivity.
The Company plans to initiate dose-escalation Phase I/II clinical trials of
PRO 367 in 1997, subject to obtaining necessary regulatory approvals. The PRO
367 study will be conducted by the French Association Nationale de Recherches
contre le SIDA at the Pitie-Salpetriere Hospital in Paris. The study will assess
safety, pharmacokinetics, biodistribution and antiviral effects of PRO 367 in
HIV-positive adult patients.
In IN VITRO tests, PRO 367 specifically bound with high affinity to the
gp120 glycoprotein on the cell surface. In addition, a pilot Phase I clinical
trial in AIDS patients of a trace-labelled precursor of PRO 367 is being
conducted under an institutional IND at Sloan-Kettering. This trial is assessing
the safety, pharmacology and biodistribution of the compound with low doses of
iodine-131. To date, the compound
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has been well tolerated by all patients and no clinically significant side
effects attributable to the compound have been observed.
CKR-5/FUSION (USING PROSYS): HIV THERAPY
The Company's first application of its CKR-5 receptor technology is a
proprietary assay known as ProSys. ProSys models fusion of HIV with human cells
by means of a rapid, automated and sensitive assay that does not involve the use
of infectious virus. Progenics is using ProSys in a program to discover novel
biologic and small-molecule therapeutics that specifically inhibit the
interaction between HIV and the CKR-5 receptor, thereby blocking viral fusion
and entry. Progenics is currently seeking pharmaceutical company collaborators
for this program.
PROVAX: HIV VACCINE
Progenics is conducting research with respect to ProVax, a vaccine candidate
which it believes will be useful as a preventative or a therapeutic treatment
for HIV-positive individuals. Progenics is currently performing
government-funded research and development of ProVax in collaboration with
ADARC, the Southwest Foundation for Biomedical Research in San Antonio and the
University of Oklahoma Medical Center.
ASSAYS, DRUG SCREENING PROGRAM AND REAGENTS
Through its immunology expertise, Progenics has developed certain assays
which are used both independently and in collaboration with partners, as well as
certain reagents which are being sold for research use only.
ONCOTECT GM
Progenics has developed ONCOTECT GM, a clinical assay for assessing
prognosis in patients with melanoma and other cancers. ONCOTECT GM measures the
levels of antibody to GM2 ganglioside in the blood. In clinical trials of a
therapeutic vaccine for melanoma, the presence of these antibodies significantly
correlated with improved recurrence-free and overall survival of patients. The
Company is currently using ONCOTECT GM in its cancer vaccine clinical trials.
HIV ATTACHMENT DRUG SCREEN
Progenics, as part of a collaborative development project with American
Cyanamid Company ("American Cyanamid"), a subsidiary of American Home Products
Corporation ("American Home Products"), has developed a proprietary drug
screening assay designed to identify novel small-molecule therapeutics for HIV
infection which inhibit attachment of the virus to the CD4 receptor. This assay
has been used in a high-throughput screening program. The Company and American
Cyanamid have agreed that all discoveries made in the course of their
collaboration will be jointly owned. Progenics and the Wyeth-Ayerst Research
Division of American Home Products plan to perform additional studies to
evaluate the antiviral activity of the compounds discovered in the course of the
screening program.
RESEARCH REAGENTS: SCD4 AND GP120
Progenics manufactures the research reagents sCD4 and gp120 which it sells
to DuPont de Nemours & Company ("DuPont") and Intracel Corporation ("Intracel")
for resale. DuPont markets and sells gp120 and sCD4 under both the Progenics and
the DuPont names. Intracel markets and sells gp120 and sCD4 under both the
Progenics and Intracel names. These products are sold worldwide for research
use.
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BUSINESS STRATEGY
Progenics' strategy is to develop innovative products for the treatment and
prevention of cancer and viral diseases based upon its expertise in immunology.
Key elements of the Company's strategy are as follows:
LEVERAGE CORE PROPRIETARY TECHNOLOGIES. Progenics is developing a portfolio
of therapeutic cancer vaccines and HIV treatments utilizing its proprietary
ganglioside conjugate vaccine, UnAB and CKR-5/fusion technologies. Progenics has
recently commenced pivotal Phase III clinical trials of GMK and Phase I/II
clinical trials of MGV, and plans to initiate clinical trials of its HIV
products in 1997. The Company also is actively involved in research based on the
discovery of a second HIV receptor, CKR-5, and its role in viral fusion and
entry. The Company is exploring additional applications of these existing core
technologies. For example, the Company is continuing to screen additional
cancers for the presence of specific gangliosides in order to develop vaccines
to treat a variety of cancers and continues to perform additional research into
the mechanism of HIV entry into the cell.
IN-LICENSE ADDITIONAL PRODUCT CANDIDATES AND TECHNOLOGIES. The Company
intends to continue to in-license technologies and product candidates that
complement its existing capabilities. Sources for these technologies range from
academic institutions and research organizations to other biotechnology and
pharmaceutical companies. In particular, the Company's license agreement with
Sloan-Kettering covers certain future developments in the cancer vaccine field
resulting from work performed in a laboratory at Sloan-Kettering. The Company
believes this in-licensing strategy will enable it to bring products to market
more quickly, efficiently and at lower cost while it focuses its expertise on
product development and pre-clinical and clinical trial design and
implementation.
ESTABLISH COLLABORATIONS TO MINIMIZE DEVELOPMENT COSTS AND ACCESS
EXPERTISE. Progenics has carefully controlled its expenditures on early stage
research, clinical trials and related infrastructure by establishing
collaborations with leading research institutions and clinical research
organizations. For example, Progenics currently has collaborations with academic
and government institutions such as Sloan-Kettering, ADARC and the CDC, and
clinical research groups such as ECOG, SWOG, ICR and EORTC. These relationships
enable the Company to substantially reduce its financing requirements for basic
research and clinical trials. In addition, collaboration with these groups
allows the Company to access their substantial expertise. Finally, Progenics has
funded, and plans to continue to fund, a significant portion of certain of its
programs with government research grants and contracts.
SELECT AN APPROPRIATE COMMERCIALIZATION STRATEGY FOR EACH
PRODUCT. Progenics will determine what it believes to be the most expedient and
cost-effective way to commercialize each product that it develops. Progenics may
undertake to manufacture, market and sell the product itself, or may undertake
one or more of these functions in conjunction with third-party manufacturers,
marketers, distributors, representatives, licensors or others. To date,
Progenics has retained all commercial rights to its four principal products, all
of which have entered, or are about to enter, human clinical trials. As a
result, the Company believes that it will be able to retain a greater share of
the economic value of these products which it, or a collaborator selected by it,
is able to bring to market. The key factors that will guide Progenics in making
each of these decisions are the nature of the product, the facilities and skills
required to manufacture the product, the anticipated distribution channels and
required marketing capabilities and the resources and skills of prospective
collaborators.
LICENSES
The Company is a party to license arrangements under which it has obtained
rights to use certain technologies in its cancer and HIV programs. Set forth
below is a summary of those licenses that the Company believes to be important
to its business.
The Company is party to a license agreement with Sloan-Kettering under which
the Company obtained the worldwide, exclusive rights to certain technology
relating to ganglioside conjugate vaccines,
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<PAGE>
including GMK and MGV, and their use to treat or prevent cancer. The
Sloan-Kettering license terminates upon the expiration of the last of the
licensed patents or 15 years from the date of the first commercial sale of a
licensed product pursuant to the agreement, whichever is later. In addition to
patent applications, the Sloan-Kettering license includes the exclusive rights
to use certain relevant technical information and know-how, as well as rights to
certain future developments. A number of Sloan-Kettering physician-scientists
also serve as consultants to the Company.
The Company is party to a license agreement with The Regents of the
University of California under which the Company obtained the exclusive rights
to an issued U.S. patent covering certain ganglioside conjugate vaccines. The
license agreement terminates upon the expiration of the patent.
The Company is party to a license agreement with Columbia University under
which the Company has obtained exclusive, worldwide rights to certain technology
and materials relating to CD4 and its use to treat or prevent HIV infection. The
license agreement will terminate upon the expiration of the last of the licensed
patents.
The Company has entered into a license and supply agreement with Aquila
pursuant to which Aquila agreed to supply the Company with all of its
requirements for the QS-21 adjuvant for use in certain ganglioside-based cancer
vaccines, including GMK and MGV. The agreement grants to the Company a license
to use Aquila's patented technology to develop, manufacture and sell certain
cancer vaccines using QS-21 and, if Aquila is unable to supply the Company with
sufficient quantities of QS-21, the Company has the right to manufacture QS-21
itself or purchase it from third parties for so long as Aquila is unable to
supply the Company with sufficient quantities of QS-21. QS-21 is the lead
compound in the Stimulon-TM- family of adjuvants developed and owned by Aquila.
The license terminates upon the expiration of the last of the licensed patents.
The licenses to which the Company is a party impose various milestone,
commercialization, sublicensing, royalty and other payment, insurance and other
obligations on the Company. Failure by the Company to comply with these
requirements could result in the termination of the applicable agreement, which
could have a material adverse effect on the Company's business.
RESEARCH AND DEVELOPMENT COLLABORATIONS
The Company has entered into collaborative agreements with various parties
relating to its cancer and HIV programs. Set forth below is a summary of those
collaborations that the Company believes to be important to its business.
The Company is working on a collaborative basis with ADARC with respect to
the development of certain of the Company's HIV products. Under the agreement
with ADARC, the Company is obligated to pay the salary of an ADARC technician
who works on scientific projects of mutual interest to the Company and ADARC.
The Company is party to a cooperative research and development agreement
with the CDC to conduct collaborative research on certain of the Company's HIV
products. Under the agreement with the CDC, the Company provides researchers
with certain materials for investigation at the CDC. The agreement with the CDC
terminates when the research plan, as described in the agreement, is completed,
unless earlier terminated by the parties.
In general, the Company's collaborative research agreements require the
payment by Progenics of various amounts in support of the research to be
conducted. If the collaborator creates any invention during the course of its
efforts, solely or jointly with the Company, the Company generally has an option
to negotiate an exclusive, royalty-bearing license of the collaborator's rights
in the invention for the purpose of commercializing any product incorporating
such invention. Inventions developed solely by the Company's scientists as part
of the collaboration generally are owned exclusively by the Company. Most of
these collaborative agreements are non-exclusive and can be cancelled on
relatively short notice.
37
<PAGE>
GOVERNMENT GRANTS
Through September 30, 1996, the Company had been awarded government grants,
aggregating approximately $1,984,000 under the Small Business Innovation
Research ("SBIR") program of the NIH for the Company's commercial development of
PRO 542, PRO 367, ProVax and ProSys. Through September 30, 1996 the Company had
recognized approximately $1,298,000 of such amount as revenue. In addition, the
Company has been awarded a $812,000 multi-year grant under a contract with the
Department of Defense for work related to ProVax. Through September 30, 1996 the
Company had recognized approximately $437,000 of such amount as revenue.
Under the terms of these grants, the Company has, subject to certain rights
of the government described below, all right, title and interest to all patents,
copyrights and data pertaining to any product developed. However, under existing
regulations, the government receives a royalty-free license for federal
government use with respect to patents developed by grant recipients. In
addition, the government may, in certain circumstances, require the Company to
license technology resulting from the funded projects to third parties and may
require that the Company manufacture substantially all of the products resulting
from a particular grant in the United States.
The government's obligation to make payments under these grants is subject
to appropriation by the United States Congress for funding in each such year.
Moreover, it is possible that Congress or the government agencies that
administer these government research programs will determine to scale back these
programs or terminate them or that the government will award future grants to
competitors of the Company instead of the Company. In addition, while Progenics
intends to pursue additional government grants related to its areas of research
and development, there can be no assurances that the Company will be awarded any
such grants in the future or that any amounts derived therefrom will not be less
than those received to date.
PATENTS AND PROPRIETARY TECHNOLOGY
Progenics' policy is to protect its proprietary technology, and the Company
considers the protection of such rights to be important to its business. In
addition to seeking U.S. patent protection for many of its inventions, the
Company generally files patent applications in Canada, Japan, Western European
countries and additional foreign countries on a selective basis in order to
protect the inventions deemed to be important to the development of its foreign
business.
Under a license agreement with Sloan-Kettering, Progenics obtained
worldwide, exclusive rights to certain technology relating to ganglioside
conjugate vaccines, including GMK and MGV, and their use to treat or prevent
cancer. This technology is the subject of a patent application filed by
Sloan-Kettering in the U.S. and 14 foreign countries claiming composition of
matter and methods of production and use of certain ganglioside conjugate
vaccines for the treatment or prevention of human cancer.
Under a license agreement with Columbia University, Progenics obtained
worldwide, exclusive rights to certain technology relating to CD4 and its use to
treat or prevent HIV infection. This technology is the subject of issued U.S.
and European patents and several related U.S. and foreign patent applications
filed by Columbia University which name Dr. Maddon and certain members of the
Company's Virology Scientific Advisory Board as inventors. The issued patents
and the patent applications claim composition of matter and methods of
production and use of certain CD4-based products for the treatment or prevention
of HIV infection. Progenics has also filed a number of U.S. and foreign patent
applications on its UnAB, ProSys and ProVax technologies and clinical uses of
these technologies.
There can be no assurance that patent applications owned by or licensed to
the Company will result in patents being issued or that, if issued, the patents
will afford protection against competitors with similar technology. Although a
patent has a statutory presumption of validity in the United States, the
issuance of a patent is not conclusive as to such validity or as to the
enforceable scope of the claims of the patent.
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<PAGE>
There can be no assurance that the Company's issued patents or any patents
subsequently issued to or licensed by the Company will not be successfully
challenged in the future. The validity or enforceability of a patent after its
issuance by the patent office can be challenged in litigation. The cost of
litigation to uphold the validity of patents and to prevent patent infringement
can be substantial. If the outcome of the litigation is adverse to the owner of
the patent, third parties may then be able to use the invention covered by the
patent without payment. There can be no assurance that the Company's patents
will not be infringed or successfully avoided through design innovation.
There may be patent applications and issued patents belonging to competitors
that may require the Company to alter its products, pay licensing fees or cease
certain activities. If the Company's products conflict with patents that have
been or may be granted to competitors, universities or others, such other
persons could bring legal actions against the Company claiming damages and
seeking to enjoin manufacturing and marketing of the affected products. If any
such actions are successful, in addition to any potential liability for damages,
the Company could be required to obtain a license in order to continue to
manufacture or market the affected products. There can be no assurance that the
Company would prevail in any such action or that any license required under any
such patent would be made available on acceptable terms or at all. The Company
believes that there may be significant litigation in the industry regarding
patent and other intellectual property rights. If the Company becomes involved
in such litigation, it could consume substantial resources.
Progenics has also filed a number of U.S. and foreign patent applications
(one of which is owned jointly with ADARC) relating to the discovery of a second
HIV receptor, CKR-5. In addition to the risks described above, the Company is
aware that other groups have claimed discoveries similar to that covered by the
Company's patent applications. These groups may have made their discoveries
prior to the discoveries covered by the Company's patent applications and may
have filed their applications prior to the Company's patent applications. The
Company does not expect to know for several years the relative strength of its
patent position as compared to these other groups.
The enactment of the legislation implementing the General Agreement on
Tariffs and Trade has resulted in certain changes to United States patent laws
that became effective on June 8, 1995. Most notably, the term of patent
protection for patent applications filed on or after June 8, 1995 is no longer a
period of seventeen years from the date of grant. The new term of United States
patents will commence on the date of issuance and terminate twenty years from
the earliest effective filing date of the application. Because the time from
filing to issuance of patent applications is often more than three years, a
twenty-year term from the effective date of filing may result in a substantially
shortened term of patent protection, which may adversely impact the Company's
patent position.
In addition to the patents, patent applications, licenses and intellectual
property processes described above, the Company also relies on unpatented
technology, trade secrets and information. No assurance can be given that others
will not independently develop substantially equivalent information and
techniques or otherwise gain access to the Company's technology or disclose such
technology, or that the Company can meaningfully protect its rights in such
unpatented technology, trade secrets and information. The Company requires each
of its employees, consultants and advisors to execute a confidentiality
agreement at the commencement of an employment or consulting relationship with
the Company. The agreements generally provide that all inventions conceived by
the individual in the course of employment or in providing services to the
Company and all confidential information developed by, or made known to, the
individual during the term of the relationship shall be the exclusive property
of the Company and shall be kept confidential and not disclosed to third parties
except in limited specified circumstances. There can be no assurance, however,
that these agreements will provide meaningful protection for the Company's
information in the event of unauthorized use or disclosure of such confidential
information.
39
<PAGE>
GOVERNMENT REGULATION
The Company and its products are subject to comprehensive regulation by the
FDA in the United States and by comparable authorities in other countries. These
national agencies and other federal, state, and local entities regulate, among
other things, the preclinical and clinical testing, safety, effectiveness,
approval, manufacture, labeling, marketing, export, storage, record keeping,
advertising, and promotion of the Company's products.
FDA approval of the Company's products, including a review of the
manufacturing processes and facilities used to produce such products, will be
required before such products may be marketed in the United States. The process
of obtaining approvals from the FDA can be costly, time consuming, and subject
to unanticipated delays. There can be no assurance that approvals of the
Company's proposed products, processes, or facilities will be granted on a
timely basis, or at all. Any failure to obtain or delay in obtaining such
approvals would adversely affect the ability of the Company to market its
proposed products. Moreover, even if regulatory approval is granted, such
approval may include significant limitations on indicated uses for which a
product could be marketed.
The process required by the FDA before the Company's products may be
approved for marketing in the United States generally involves (i) preclinical
laboratory and animal tests, (ii) submission to the FDA of an IND, which must
become effective before clinical trials may begin, (iii) adequate and
well-controlled human clinical trials to establish the safety and efficacy of
the drug for its intended indication, (iv) submission to the FDA of an NDA or
PLA and (v) FDA review of the NDA or PLA in order to determine, among other
things, whether the drug or product is safe and effective for its intended uses.
There is no assurance that the FDA review process will result in product
approval on a timely basis, or at all.
Preclinical tests include laboratory evaluation of product chemistry and
animal studies to gain preliminary information of a product's pharmacology and
toxicology and to identify any safety problems that would preclude testing in
humans. Products must generally be manufactured according to cGMP and
preclinical safety tests must be conducted by laboratories that comply with FDA
regulations regarding good laboratory practices. The results of the preclinical
tests are submitted to the FDA as part of an IND application and are reviewed by
the FDA prior to the commencement of human clinical trials. Unless the FDA
objects to, or makes comments or raises questions concerning, an IND, the IND
will become effective 30 days following its receipt by the FDA and initial
clinical studies may begin, although companies often obtain affirmative FDA
approval before beginning such studies. There can be no assurance that
submission of an IND will result in FDA authorization to commence clinical
trials. See "Risk Factors-- Uncertainty Associated with Preclinical and Clinical
Testing."
Clinical trials involve the administration of the investigational new drug
to healthy volunteers and to patients under the supervision of a qualified
principal investigator. Clinical trials must be conducted in accordance with the
FDA's Good Clinical Practice requirements under protocols that detail, among
other things, the objectives of the study, the parameters to be used to monitor
safety, and the effectiveness criteria to be evaluated. Each protocol must be
submitted to the FDA as part of the IND. Further, each clinical study must be
conducted under the auspices of an Institutional Review Board ("IRB"). The IRB
will consider, among other things, ethical factors, the safety of human
subjects, the possible liability of the institution and the informed consent
disclosure which must be made to participants in the clinical trial.
Clinical trials are typically conducted in three sequential phases, although
the phases may overlap. During Phase I, when the drug is initially administered
to human subjects, the product is tested for safety, dosage tolerance,
absorption, metabolism, distribution, and excretion. Phase II involves studies
in a limited patient population to (i) evaluate preliminarily the efficacy of
the product for specific, targeted indications, (ii) determine dosage tolerance
and optimal dosage, and (iii) identify possible adverse effects and safety
risks. When a new product is found to have an effect and to have an acceptable
safety profile in Phase II evaluation, Phase III trials are undertaken in order
to further evaluate clinical efficacy and to further test
40
<PAGE>
for safety within an expanded patient population. The FDA may suspend clinical
trials at any point in this process if it concludes that clinical subjects are
being exposed to an unacceptable health risk.
The results of the preclinical studies and clinical studies, the chemistry
and manufacturing data, and the proposed labelling, among other things, are
submitted to the FDA in the form of an NDA or PLA, approval of which must be
obtained prior to commencement of commercial sales. The FDA may refuse to accept
the NDA or PLA for filing if certain administrative and content criteria are not
satisfied, and even after accepting the NDA or PLA for review, the FDA may
require additional testing or information before approval of the NDA or PLA. In
any event, the FDA must deny an NDA or PLA if applicable regulatory requirements
are not ultimately satisfied. Moreover, if regulatory approval of a product is
granted, such approval may be made subject to various conditions, including
post-marketing testing and surveillance to monitor the safety of the product, or
may entail limitations on the indicated uses for which it may be marketed.
Finally, product approvals may be withdrawn if compliance with regulatory
standards is not maintained or if problems occur following initial marketing.
Under current FDA regulations, in addition to the licensing of a vaccine
product itself through the PLA process, any establishment used to manufacture a
vaccine product must also be licensed. To obtain the necessary establishment
license, an establishment license application ("ELA") describing the facilities,
equipment, processes, and personnel used to manufacture the product in question
must be filed with the FDA. The establishment license will be granted only after
the FDA inspects the establishment and determines that the establishment
complies with all applicable standards, including, but not limited to,
compliance with cGMP and the ability to consistently manufacture the product at
the establishment in accordance with the PLA. FDA approval of both the PLA and
ELA must be received prior to marketing of a vaccine product. Therefore, any
delay in FDA's approval of the ELA, or refusal to approve the ELA, would delay
or prevent the marketing of the product in question.
On May 14, 1996, the FDA adopted a new regulation, effective May 24, 1996,
regarding the license application process for certain biological products. Those
biological products that fall within the regulation will be reviewed on the
basis of a single biologics license application ("BLA"), rather than a PLA/ELA.
The BLA includes the same information as the current PLA, but certain of the
data now required as part of the ELA do not have to be submitted or reviewed
during the approval process. This new rule is intended, at least in part, to
lessen the regulatory burden on manufacturers of certain biologics and
accelerate the approval process. There can be no assurance, however, that the
FDA will consider the new regulation applicable to any of the Company's
products, or that the BLA process, if applicable to the Company's products, will
have the intended effect of reducing review times.
Both before and after approval is obtained, a product, its manufacturer, and
the holder of the NDA or PLA for the product are subject to comprehensive
regulatory oversight. Violations of regulatory requirements at any stage,
including the preclinical and clinical testing process, the approval process, or
thereafter (including after approval) may result in various adverse
consequences, including FDA delay in approving or refusal to approve a product,
withdrawal of an approved product from the market and/or the imposition of
criminal penalties against the manufacturer and/or NDA or PLA holder. In
addition, later discovery of previously unknown problems may result in
restrictions on such product, manufacturer, or NDA or PLA holder, including
withdrawal of the product from the market. Also, new government requirements may
be established that could delay or prevent regulatory approval of the Company's
products under development.
The FDA has implemented accelerated approval procedures for certain
pharmaceutical agents that treat serious or life-threatening diseases and
conditions, and that provide meaningful therapeutic benefit over existing
treatments. The Company believes that certain of its products in development may
qualify for accelerated approval. The Company cannot predict the ultimate
impact, however, of the FDA's accelerated approval procedures on the timing or
likelihood of approval of any of its potential products or those of any
competitor. In addition, the approval of a product under the accelerated
approval procedures is subject to various conditions, including the requirement
to verify clinical benefit in postmarketing studies, and the
41
<PAGE>
authority on the part of the FDA to withdraw approval under streamlined
procedures if such studies do not verify clinical benefit or under various other
circumstances.
Whether or not FDA approval has been obtained, approval of a pharmaceutical
product by comparable government regulatory authorities in foreign countries
must be obtained prior to marketing such product in such countries. The approval
procedure varies from country to country, and the time required may be longer or
shorter than that required for FDA approval. Although there are some procedures
for unified filing for certain European countries, in general, each country has
its own procedures and requirements. The Company does not currently have any
facilities or personnel outside of the United States.
In addition to regulations enforced by the FDA, the Company also is subject
to regulation under the Occupational Safety and Health Act, the Environmental
Protection Act, the Toxic Substances Control Act, the Resource Conservation and
Recovery Act and other present and potential future federal, state or local
regulations. The Company's research and development involves the controlled use
of hazardous materials, chemicals, viruses and various radioactive compounds.
Although the Company believes that its safety procedures for storing, handling,
using and disposing of such materials comply with the standards prescribed by
applicable regulations, the risk of accidental contaminations or injury from
these materials cannot be completely eliminated. In the event of such an
accident, the Company could be held liable for any damages that result and any
such liability could have a material adverse effect of the Company. See "Risk
Factors --Government Regulation; No Assurance of Regulatory Approval" and
"--Hazardous Materials; Environmental Matters."
MANUFACTURING
Progenics has considerable expertise in the manufacture of its proprietary
ganglioside conjugate vaccines and recombinant proteins. The Company currently
manufactures GMK, MGV, PRO 542 and PRO 367 in its pilot production facilities in
Tarrytown, New York. The Company believes that its existing production
facilities will be sufficient to meet the Company's initial needs for clinical
trials. However, these facilities may be insufficient for all of the Company's
late-stage clinical trials and for its commercial-scale requirements.
Accordingly, the Company expects to be required in the future to expand its
manufacturing staff and facilities and obtain new facilities or to contract with
third parties to assist with production. In general, Progenics plans to retain
manufacturing rights and control during clinical trials and commercialization.
In the event the Company decides to establish a full-scale commercial
manufacturing facility, the Company will require substantial additional funds
and will be required to hire and train significant numbers of employees and
comply with the extensive cGMP regulations applicable to such a facility. In
addition, if any of the Company's products produced at its facilities were
regulated as biologics, the Company could be required to file an ELA and obtain
an establishment license for its facilities.
SALES AND MARKETING
Progenics plans to market products for which it obtains regulatory approval
through co-marketing, co-promotion, licensing and distribution arrangements with
third party collaborators. The Company believes that this approach will both
increase market penetration and commercial acceptance of its products and enable
the Company to avoid expending significant funds to develop a large sales and
marketing organization. The Company has entered into collaborative marketing
arrangements with DuPont and Intracel with respect to the sCD4 and gp120
research reagents.
COMPETITION
Competition in the biopharmaceutical industry is intense. The Company faces
competition from many companies, major universities and research institutions in
the United States and abroad. Many of the Company's competitors have
substantially greater resources, experience in conducting preclinical studies
42
<PAGE>
and clinical trials and obtaining regulatory approvals for their products,
operating experience, research and development and marketing capabilities and
production capabilities than those of the Company. The Company will face
competition from companies marketing existing products or developing new
products for diseases targeted by the Company's technologies. The development of
new products for those diseases for which the Company is developing products
could render the Company's product candidates noncompetitive and obsolete.
A significant amount of research in this industry is also being carried out
at academic and government institutions. These institutions are becoming
increasingly aware of the commercial value of their findings and are becoming
more aggressive in pursuing patent protection and negotiating licensing
arrangements to collect royalties for use of technology that they have
developed. These institutions may also market competitive commercial products on
their own or in collaboration with competitors. Any resulting increase in the
cost or decrease in the availability of technology or product candidates from
these institutions may affect the Company's business strategy.
Competition with respect to the Company's technologies and product
candidates is and will be based, among other things, on effectiveness, safety,
reliability, availability, price and patent position. Another important factor
will be the timing of market introduction of the Company's or competitive
products. Accordingly, the speed with which Progenics can develop products,
complete the clinical trials and approval processes and ultimately supply
commercial quantities of the products to the market is expected to be an
important competitive factor. The Company's competitive position will also
depend upon its ability to attract and retain qualified personnel, to obtain
patent protection or otherwise develop proprietary products or processes, and to
secure sufficient capital resources for the often substantial period between
technological conception and commercial sales.
PRODUCT LIABILITY
The testing, manufacturing and marketing of the Company's products involves
an inherent risk of product liability attributable to unwanted and potentially
serious health effects. To the extent the Company elects to test, manufacture or
market products independently, it will bear the risk of product liability
directly. If the Company enters into collaborative agreements with third parties
regarding commercialization of any products based on the Company's technologies,
the Company will seek to obtain indemnification agreements from such partners,
however there can be no assurance that corporate sponsors, if any, would agree
to fully indemnify the Company against losses resulting from such collaborative
efforts. The Company has obtained insurance in the amount of $5,000,000 against
the risk of product liability. This insurance is subject to certain deductibles
and coverage limitations. There is no guarantee that insurance will continue to
be available at a reasonable cost, or at all, or that the amount of such
insurance will be adequate.
HUMAN RESOURCES
At September 30, 1996, the Company had 27 full-time employees, four of whom
hold Ph.D. degrees or foreign equivalents and two of whom hold M.D. degrees.
Twenty-one employees are engaged in research and development, medical and
regulatory affairs and manufacturing activities and six are engaged in finance,
administration and business development. The Company considers its relations
with its employees to be good. None of its employees is covered by a collective
bargaining agreement.
FACILITIES
Progenics leases approximately 23,000 square feet of laboratory,
manufacturing and office space in Westchester County, New York, approximately
twenty-five miles north of New York City. The Company leases this space under an
operating lease which terminates in April 1998. Progenics has two pilot
production facilities within its leased facilities for the manufacture of
products for clinical trials.
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LEGAL PROCEEDINGS
The Company is not party to any material legal proceedings.
SCIENTIFIC ADVISORY BOARDS
An important component of Progenics' scientific strategy is its
collaborative relationship with leading researchers in cancer and virology.
Certain of these researchers are members of the Company's two Scientific
Advisory Boards (each an "SAB"), one in cancer and one in virology. The members
of each SAB attend periodic meetings and provide Progenics with specific
expertise in both research and clinical development. In addition, Progenics has
collaborative research relationships with certain individual SAB members. All
members of the SABs are employed by employers other than the Company and may
have commitments to or consulting or advisory agreements with other entities
that may limit their availability to the Company. These companies may also be
competitors of Progenics. Several members of the SABs have, from time to time,
devoted significant time and energy to the affairs of the Company. However, no
member is regularly expected to devote more than a small portion of his time to
Progenics. In general, Progenics' scientific advisors are granted stock options
in the Company and receive financial remuneration for their services.
CANCER SCIENTIFIC ADVISORY BOARD
<TABLE>
<CAPTION>
NAME POSITION/AFFILIATION
- --------------------------------------------- ---------------------------------------------
<S> <C>
Alan N. Houghton, M.D. (Chairman)............ Chairman, Immunology Program, Sloan-Kettering
and Professor, Cornell University Medical
College ("CUMC")
Angus G. Dalgleish, M.D., Ph.D............... Chairman and Professor of Medical Oncology,
St. George's Hospital, London
David W. Golde, M.D.......................... Physician-in-Chief, Sloan-Kettering and
Professor, CUMC
David R. Klatzmann, M.D., Ph.D............... Professor of Immunology, Pitie-Salpetriere
Hospital, Paris
Philip O. Livingston, M.D.................... Associate Member, Sloan-Kettering and
Associate Professor, CUMC
John Mendelsohn, M.D......................... President, The University of Texas M.D.
Anderson Cancer Center
David A. Scheinberg, M.D., Ph.D.............. Chief, Leukemia Service, Sloan-Kettering and
Associate Professor, CUMC
</TABLE>
VIROLOGY SCIENTIFIC ADVISORY BOARD
<TABLE>
<CAPTION>
NAME POSITION/AFFILIATION
- --------------------------------------------- ---------------------------------------------
<S> <C>
Stephen P. Goff, Ph.D. (Chairman)............ Professor of Biochemistry, Columbia
University
Mark Alizon, M.D., Ph.D...................... Director of Research, Institut Cochin, Paris
Lawrence A. Chasin, Ph.D..................... Professor of Biological Sciences, Columbia
University
Leonard Chess, M.D........................... Professor of Medicine, Columbia University
Wayne A. Hendrickson, Ph.D................... Professor of Biochemistry, Columbia
University
Israel Lowy, M.D., Ph.D...................... Assistant Professor of Medicine, Mount Sinai
Medical Center
J. Steven McDougal, M.D...................... Chief, Immunology Branch, CDC, Atlanta
Luc Montagnier, M.D.......................... Professor and Chairman of Virology, Pasteur
Institute, Paris
Sherie L. Morrison, Ph.D..................... Professor of Microbiology, UCLA
Robin A. Weiss, Ph.D......................... Professor and Director of Research, ICR,
Royal Cancer Hospital, London
</TABLE>
44
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MANAGEMENT
DIRECTORS, EXECUTIVE OFFICERS AND KEY MANAGEMENT
The directors, executive officers and key management of the Company are as
follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ----------------------------------------------------- --- -----------------------------------------------------
<S> <C> <C>
Paul J. Maddon, M.D., Ph.D........................... 37 Chairman of the Board, Chief Executive Officer,
President and Chief Science Officer
Robert J. Israel, M.D................................ 39 Vice President, Medical Affairs
Robert A. McKinney................................... 40 Vice President, Finance and Operations and Treasurer
Joel D. Sendek....................................... 29 Senior Director, Corporate Development and Investor
Relations
Graham P. Allaway, Ph.D.............................. 41 Associate Scientific Director and Head, Therapeutic
Development Group
Patricia C. Fazio.................................... 37 Director, Health & Safety and Project Management
Charles A. Baker (1)................................. 64 Director
Mark F. Dalton (1)................................... 46 Director
Stephen P. Goff, Ph.D. (2)........................... 45 Director
Elizabeth M. Greetham (2)............................ 47 Director
Paul F. Jacobson (1)................................. 42 Director
David A. Scheinberg, M.D., Ph.D. (2)................. 40 Director
</TABLE>
- ------------------------------
(1) Member of Compensation Committee
(2) Member of Audit Committee
PAUL J. MADDON, M.D., PH.D. is the founder of the Company and has served in
various capacities since its inception, including Chairman of the Board of
Directors, Chief Executive Officer, President and Chief Science Officer. From
1981 to 1988, Dr. Maddon performed research at the Howard Hughes Medical
Institute at Columbia University in the laboratory of Dr. Richard Axel. He
received a B.A. in biochemistry and mathematics and an M.D. and a Ph.D. in
biochemistry and molecular biophysics from Columbia University. Dr. Maddon has
been an Adjunct Assistant Professor of Medicine at Columbia University since
1989.
ROBERT J. ISRAEL, M.D. joined the Company in October 1994 and has been Vice
President, Medical Affairs since that time. From 1991 to 1994, Dr. Israel was
Director, Clinical Research-Oncology and Immunohematology at Sandoz
Pharmaceuticals Corporation, a pharmaceutical company. From 1988 to 1991, he was
Associate Director, Oncology Clinical Research at Schering-Plough Corporation, a
pharmaceutical company. Dr. Israel is a licensed physician and is board
certified in both internal medicine and medical oncology. He received a B.A. in
physics from Rutgers University and an M.D. from the University of Pennsylvania
and completed an oncology fellowship at Sloan-Kettering. Dr. Israel has been a
consultant to the Solid Tumor Service at Sloan-Kettering since 1987.
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<PAGE>
ROBERT A. MCKINNEY joined the Company in September 1992. Mr. McKinney served
as Director, Finance and Operations and Treasurer from 1992 to January 1993,
when he was appointed Vice President, Finance and Operations and Treasurer of
Progenics. From 1991 to 1992, he was Corporate Controller at VIMRx
Pharmaceuticals, Inc., a biotechnology research company. From 1990 to 1991, Mr.
McKinney was Manager, General Accounting at Micrognosis, Inc., a software
integration company. From 1985 to 1990, he was an audit supervisor at Coopers &
Lybrand L.L.P., an international accounting firm. Mr. McKinney studied finance
at the University of Michigan, received a B.B.A. in accounting from Western
Connecticut State University, and is a Certified Public Accountant.
JOEL D. SENDEK joined the Company in July 1992. Mr. Sendek has served in
various management positions at Progenics, most recently as Senior Director,
Corporate Development and Investor Relations. From 1989 to 1992, he was an
investment banker in the health care group of the Corporate Finance Department
at Goldman, Sachs & Co., an international investment bank. Mr. Sendek received a
B.A. in biochemistry from Rice University.
GRAHAM P. ALLAWAY, PH.D. joined the Company in July 1990. Dr. Allaway has
served in various management positions at Progenics, most recently as Associate
Scientific Director and Head, Therapeutic Development Group. From 1984 to 1990,
he was a Visiting Fellow and Visiting Associate at the NIH in the laboratory of
Dr. Abner Notkins. From 1982 to 1984, Dr. Allaway performed post-doctoral
research at Memorial University of Newfoundland, Canada. He received an M.A. in
zoology from Oxford University and a Ph.D. in virology from the University of
London. Dr. Allaway has been an Adjunct Associate Professor of Microbiology and
Immunology at New York Medical College since 1996.
PATRICIA C. FAZIO joined the Company in August 1992. Ms. Fazio has served in
various management positions at Progenics, most recently as Director, Health &
Safety and Project Management. From 1987 to 1992, she was Senior Research
Technician and Laboratory Manager at the Howard Hughes Medical Institute at
Columbia University. From 1982 to 1987, Ms. Fazio was Chief Laboratory
Technologist in the Department of Pathology at Columbia Presbyterian Medical
Center. She received a B.A. in biology and chemistry at the College of New
Rochelle.
CHARLES A. BAKER has been a Director of the Company since January 1994. Mr.
Baker has been the Chairman, President and Chief Executive Officer of The
Liposome Company, Inc., a biotechnology company located in Princeton, NJ, since
1989. Mr. Baker is currently a director of Regeneron Pharmaceuticals, Inc., a
biotechnology company. He serves on the Scientific Advisory Council of Rutgers
University and is a member of the Council of Visitors of the Marine Biological
Laboratory at Woods Hole, MA. Mr. Baker has more than 30 years of pharmaceutical
industry experience, and has held senior management positions at Pfizer, Abbott
Laboratories, Squibb Corporation, and A.L. Laboratories. Mr. Baker received a
B.A. from Swarthmore College and a J.D. from Columbia University.
MARK F. DALTON has been a Director of the Company since July 1990. Mr.
Dalton has been the President, Chief Operating Officer and a director of Tudor
Investment Corporation, an investment advisory company, and its affiliates since
1988. From 1979 to 1988, he served in various senior management positions at
Kidder, Peabody & Co. Incorporated, including Chief Financial Officer. Mr.
Dalton is currently a director of several private companies in the U.S., Europe
and Asia. Mr. Dalton received a B.A. from Denison University and a J.D. from
Vanderbilt University.
STEPHEN P. GOFF, PH.D. has been a Director of the Company since February
1993. Dr. Goff has been a member of the Virology Scientific Advisory Board since
1988 and has been its Chairman since April 1991. Dr. Goff has been the Higgins
Professor in the Departments of Biochemistry and Microbiology at Columbia
University since June 1990. He received an A.B. in biophysics from Amherst
College and a Ph.D. in biochemistry from Stanford University. Dr. Goff performed
post-doctoral research at the Massachusetts Institute of Technology in the
laboratory of Dr. David Baltimore.
46
<PAGE>
ELIZABETH M. GREETHAM has been a Director of the Company since January 1994.
Ms. Greetham has been the Portfolio Manager for Weiss, Peck & Greer ("WPG") Life
Sciences Fund, L.P. and WPG Institutional Life Sciences Fund, L.P. since 1992
and was a Health Care Analyst at WPG, L.L.C. from 1990 to 1992. Ms. Greetham is
also a director of Repligen Corporation and Guilford Pharmaceuticals, both of
which are biopharmaceutical companies, and ChiRex Inc. and Access
Pharmaceuticals, Inc., both of which are pharmaceutical companies. She received
an M.A. in Economics from Edinburgh University.
PAUL F. JACOBSON has been a Director of the Company since July 1990. Mr.
Jacobson has been a Managing Director of fixed income securities at Deutsche
Bank since January 1996. He was President of Jacobson Capital Partners from 1993
to 1996. From 1986 to 1993, Mr. Jacobson was a partner at Goldman, Sachs, where
he was responsible for government securities trading activities. Mr. Jacobson
received a B.A. from Vanderbilt University and an M.B.A. from Washington
University.
DAVID A. SCHEINBERG, M.D., PH.D. has been a Director of the Company since
May 1996 and a member of the Cancer Scientific Advisory Board since January
1994. Dr. Scheinberg has been associated with Sloan-Kettering since 1986, where
he has held the positions of Associate Professor (since 1994) and Chief (since
1992), Leukemia Service, Member of the Clinical Immunology Service (since 1987)
and Head, Laboratory of Hematopoietic Cancer Immunochemistry, Sloan-Kettering
Institute (since 1989). He also has held the position of Associate Professor of
Medicine and Molecular Pharmacology, Cornell University Medical College (since
1994). He received a B.A. from Cornell University, and an M.D. and a Ph.D. in
pharmacology and experimental therapeutics from The Johns Hopkins University.
All directors hold office until the next annual meeting of stockholders and
until their successors have been elected and qualified. Officers are appointed
to serve, subject to the discretion of the Board of Directors, until their
successors are appointed. There are no family relationships among any of the
executive officers or directors of the Company.
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors has a Compensation Committee, which makes
recommendations concerning salaries and incentive compensation for employees of
and consultants to the Company, establishes and approves salaries and incentive
compensation for certain senior officers and employees and administers and
grants stock options pursuant to the Company's stock option plans, and an Audit
Committee, which reviews the annual financial statements of the Company prior to
their submission to the Board of Directors, consults with the Company's
independent auditors, and examines and considers such other matters in relation
to the internal and external audit of the Company's account and in relation to
the financial affairs of the Company and its accounts, including the selection
and retention of independent auditors.
COMPENSATION OF DIRECTORS
Directors do not receive compensation in their capacities as directors. All
of the directors are reimbursed for their expenses in connection with their
attendance at Board and committee meetings. In addition, Dr. Goff and Dr.
Scheinberg receive annual compensation in the amounts of $30,000 and $18,000,
respectively, for their services as members of the Company's Virology Scientific
Advisory Board and Cancer Scientific Advisory Board, respectively. See "Certain
Transactions."
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No interlocking relationship exists between the Company's Board of Directors
or Compensation Committee and the board of directors or compensation committee
of any other company, nor has any such interlocking relationship existed in the
past. The members of the Compensation Committee are Charles A. Baker, Mark F.
Dalton and Paul F. Jacobson.
47
<PAGE>
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION
The following table sets forth certain information regarding compensation
paid and accrued during fiscal 1995 to the Company's Chief Executive Officer and
the other Executive Officers of the Company whose base compensation for fiscal
1996 equals or exceeds $100,000 (collectively, the "Named Executive Officers").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
--------------------------------------------------
<S> <C> <C> <C> <C>
OTHER
ANNUAL
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS COMPENSATION
- ---------------------------------------------------------- --------- ---------- ------------ -------------
Paul J. Maddon, M.D., Ph.D................................ 1996 $ 165,000 (1) (1)
Chairman of the Board, Chief Executive Officer, 1995 150,000 $ 20,000(2) $ 1,662(3)
President and Chief Science Officer
Robert J. Israel, M.D..................................... 1996 175,000 (1) (1)
Vice President, Medical Affairs 1995 165,000 17,500 --
Robert A. McKinney........................................ 1996 1995 100,000 (1) (1)
Vice President, Finance and Operations and Treasurer 80,641 7,000 --
</TABLE>
- ------------------------
(1) Bonuses and other annual compensation for fiscal 1996 have not yet been
determined.
(2) In addition, Dr. Maddon was awarded a bonus of $35,000, the payment of which
is contingent upon the Company's achievement of certain milestones.
(3) Represents the premium paid by the Company on a long-term disability policy.
OPTION GRANTS
The Company did not grant any options during fiscal 1995 to any of the Named
Executive Officers.
OPTION EXERCISES AND FISCAL YEAR-END OPTION VALUES
The following table sets forth certain information concerning the number and
value of unexercised options held by each of the Named Executive Officers on
December 31, 1995. No options were exercised by these individuals in fiscal
1995.
FISCAL YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF SHARES VALUE OF UNEXERCISED
UNDERLYING OPTIONS AT IN-THE-MONEY OPTIONS AT
FISCAL YEAR-END FISCAL YEAR-END(1)
-------------------------- --------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ---------------------------------------------------------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
Paul J. Maddon, M.D., Ph.D.(2)............................ 225,000 525,000 $ 274,398 $ 685,432
Robert J. Israel, M.D.(3)................................. 11,250 45,000 15,075 60,300
Robert A. McKinney(3)..................................... 28,500 24,000 75,540 57,060
</TABLE>
- ------------------------------
(1) The value of the unexercised, in-the-money options on December 31, 1995 is
based on the difference between the fair market value per share of the
Common Stock at such date as determined by the Board of Directors ($6.67),
and the per share option exercise price, multiplied by the number of shares
of Common Stock underlying the options.
(2) The exercisability of 150,000 of these options will be accelerated upon the
effectiveness of this offering (assuming an initial public offering price of
$12.00 per share) and the exercisibility of all of these options shall be
accelerated in the event of a change in control of the Company.
(3) On May 15, 1996, additional options to purchase 18,750 shares of Common
Stock were granted to Dr. Israel and additional options to purchase 15,000
shares of Common Stock were granted to Mr. McKinney. These options have an
exercise price of $6.67 per share and are not reflected in the above table.
48
<PAGE>
EMPLOYMENT AGREEMENTS
Pursuant to the terms of the Employment Agreement (the "Employment
Agreement") dated December 15, 1993 between the Company and Dr. Maddon, the
Company has retained Dr. Maddon as Chairman of the Board, President, Chief
Executive Officer and Chief Science Officer of the Company at an annual salary
of $150,000. The Employment Agreement expires on December 15, 1998 but is
automatically renewed annually thereafter for up to five successive one-year
periods, unless either the Company or Dr. Maddon gives notice to the other party
of its or his intention not to renew at least 90 days before the end of the
initial term or any renewal term. Under the Employment Agreement, each year
following the closing of this offering, Dr. Maddon's salary then in effect shall
be increased at the rate of 10% per year, although the Board of Directors has
authority to grant additional compensation increases. In addition, Dr. Maddon
will be paid a bonus of not less than $15,000 per year. If Dr. Maddon's
employment is terminated without "cause" (as defined in the Employment
Agreement), he will be entitled to receive his annual salary for a period of two
years (but in no event after December 14, 1998) and any of the 750,000 options
granted to him under the 1993 Executive Stock Option Plan that have not
previously vested will vest. Dr. Maddon is also bound by certain non-competition
obligations.
Pursuant to the terms of a letter dated August 25, 1994 between the Company
and Robert J. Israel, M.D., the Company has retained Dr. Israel as Vice
President of Medical Affairs of the Company at an annual salary of $165,000 per
year. In addition, the Company paid Dr. Israel a $10,000 bonus upon his hire.
Under the Letter Agreement, Dr. Israel is entitled to nine months salary if his
employment is terminated without cause.
STOCK OPTION PLANS
The Company has historically maintained stock option plans as an integral
component of its compensation program for key employees, directors and
consultants. The Company believes that such plans provide long-term incentives
to such persons and encourage the ownership of the Company's Common Stock. In
May 1996, the Company adopted the 1996 Stock Incentive Plan (the "1996 Plan"),
which provides for the grant of stock options as well as other types of stock
and incentive awards. Outstanding stock options that were granted under the
Company's previous stock incentive plans will remain subject to the terms and
conditions of the plan pursuant to which they were originally granted. Stock
options and other awards granted following the offering will be pursuant to the
1996 Plan.
1989 NON-QUALIFIED STOCK OPTION PLAN
The Company's 1989 Non-Qualified Stock Option Plan (the "1989 Option Plan")
was adopted by the Company in April 1989. The 1989 Option Plan provided for the
grant of stock options to employees, consultants, directors of the Company and
other individuals who render services to the Company. Under the 1989 Option
Plan, the Company could grant options not intended to qualify as incentive stock
options within the meaning of Section 422A of the Internal Revenue Code of 1986,
as amended (the "Code"). A total of 375,000 shares of Common Stock were
originally authorized for issuance under the 1989 Option Plan. As of September
30, 1996 options to purchase 354,011 shares of Common Stock were outstanding
under the 1989 Option Plan and none of these options had been exercised.
Payment of the option exercise price may be made in cash, shares of Common
Stock, a combination of cash or stock or by any other method. Options are not
assignable or transferable except by will or under the laws of descent and
distribution. For a period of ten years following the termination for any reason
of an optionee's employment or active involvement with the Company, as
determined by the Board of Directors, the Company has the right to repurchase
from the optionee any or all shares of Common Stock held by the optionee and/or
any or all of the vested but unexercised portion of any option granted under the
1989 Option Plan at a purchase price defined therein.
49
<PAGE>
The 1989 Option Plan terminated on April 1, 1994. However any options
granted prior to such termination shall continue in effect until such option is
exercised or expires in accordance with its terms and the terms of the 1989
Option Plan.
1993 STOCK OPTION PLAN
The Company's 1993 Stock Option Plan (the "1993 Option Plan") was adopted by
the Company in December 1993. The 1993 Option Plan provided for the grant of
stock options to key employees (including officers who may be members of the
Company's Board of Directors), directors who are not employees and other
individuals who render services of a special importance to the management,
operation or development of the Company. Under the 1993 Option Plan, the Company
could grant options intended to qualify as incentive stock options within the
meaning of Section 422 of the Code and options not intended to qualify as
incentive stock options. A total of 750,000 shares of Common Stock were
originally authorized for issuance under the 1993 Option Plan. As of September
30, 1996, options to purchase a total of 687,225 shares of Common Stock were
outstanding under the 1993 Option Plan and none of these options had been
exercised. The remaining 62,775 shares of Common Stock available for grant under
the 1993 Stock Option Plan (which includes certain options that expired prior to
September 30, 1996 and which became available for regrant under the 1993 Stock
Option Plan) will be granted to employees of the Company, prior to the
completion of this offering, at an option price equal to the initial public
offering price in this offering.
Payment of the option exercise price may be made in cash, shares of Common
Stock, a combination of cash or stock or by any other method. Options are not
assignable or transferable except by will or under the laws of descent and
distribution and, in the case of nonqualified options, to a designated
transferee, subject to approval by the Compensation Committee. For a period of
ten years following the termination for any reason of an optionee's employment
or active involvement with the Company, as determined by the Board of Directors,
the Company shall have the right to repurchase from the optionee any or all
shares of Common Stock acquired under the 1993 Option Plan and held by the
optionee and/or any or all of the vested but unexercised portion of any option
granted under the 1993 Option Plan at a purchase price defined therein. In
addition, the Company has certain rights of first refusal with respect to
transfers of optionees' vested and unvested stock except in the case of a
registered public offering.
Following this offering, no further shares will be available for grant under
the 1993 Option Plan and the Company does not anticipate that there will be any
further grants of options under the 1993 Option Plan. However, any option
outstanding under the 1993 Option Plan shall remain outstanding until such
option is exercised or expires in accordance with its terms and the terms of the
1993 Option Plan.
1993 EXECUTIVE STOCK OPTION PLAN
The Company's 1993 Executive Stock Option Plan (the "1993 Executive Option
Plan") was adopted by the Company in December 1993. The 1993 Executive Option
Plan provided for the grant of stock options to senior executive employees
(including officers who may be members of the Company's Board of Directors).
Under the 1993 Executive Option Plan, the Company may grant incentive stock
options or nonqualified options. A total of 750,000 shares of Common Stock were
originally authorized for issuance upon the exercise of options granted under
the 1993 Executive Option Plan. As of September 30, 1996, options to purchase a
total of 750,000 shares of Common Stock were outstanding under the 1993
Executive Option Plan and none of these options had been exercised.
Payment of the option exercise price may be made in cash, shares of Common
Stock, a combination of cash or stock or by any other method. Options are not
assignable or transferable except by will or under the laws of descent and
distribution.
50
<PAGE>
No further shares are available for grant under the 1993 Executive Option
Plan and the Company does not anticipate that there will be any further grants
of options under the 1993 Executive Option Plan. However, any option outstanding
under the 1993 Executive Option Plan shall remain outstanding until such option
is exercised or expires in accordance with its terms and the terms of the 1993
Executive Option Plan.
1996 STOCK INCENTIVE PLAN
The 1996 Plan was adopted by the Company in May 1996. The 1996 Plan permits
the Compensation Committee of the Board of Directors to make awards to
employees, advisors and consultants of the Company and its subsidiaries. The
1996 Plan provides for grant of stock options, including both incentive stock
options and nonqualified options, as well as stock appreciation rights,
restricted stock, performance shares and phantom stock, as described below. All
awards under the 1996 Plan are nontransferable by the participant, except upon
the participant's death in accordance with his will or applicable law. To date
no awards of options have been made under the 1996 Plan.
STOCK OPTIONS. The 1996 Plan authorizes the grant of nonqualified stock
options to employees, consultants and advisors of the Company and its
subsidiaries. Incentive stock options may only be granted to employees of the
Company and its subsidiaries. The exercise price of a nonqualified stock option
may be determined by the Compensation Committee in its discretion. The exercise
price of an incentive stock option may not be less than the fair market value of
the Common Stock on the date of grant (110% of the fair market value in the case
of an incentive stock option granted to a stockholder owning in excess of 10% of
the Common Stock). The value of Common Stock (determined at the time of grant)
that may be subject to incentive stock options that become exercisable by any
one employee in any one year is limited by the Code to $100,000. The maximum
term of stock options granted under the 1996 Plan is 10 years from the date of
grant. The Compensation Committee shall determine the extent to which an option
shall become and/or remain exercisable in the event of the termination of
employment or service of a participant under certain circumstances, including
retirement, death or disability, subject to certain limitations for incentive
stock options. Under the 1996 Plan, the exercise price of an option is payable
by the participant in cash or, in the discretion of the Compensation Committee,
in Common Stock or a combination of cash and Common Stock.
STOCK APPRECIATION RIGHTS. A stock appreciation right may be granted in
connection with an option, either at the time of grant or at any time thereafter
during the term of the option. A stock appreciation right granted in connection
with an option entitles the holder, upon exercise, to surrender the related
option and receive a payment based on the difference between the exercise price
of the related option and the fair market value of the Company's Common Stock on
the date of exercise. A stock appreciation right granted in connection with an
option is exercisable only at such time or times as the related option is
exercisable and expires no later than the time when the related option expires.
A stock appreciation right also may be granted without relationship to an option
and will be exercisable as determined by the Compensation Committee, but in no
event after ten years from the date of grant. A stock appreciation right granted
without relationship to an option entitles the holder, upon exercise, to a
payment based on the difference between the base price assigned to the stock
appreciation right by the Compensation Committee on the date of grant and the
fair market value of the Company's Common Stock on the date of exercise. Payment
to the holder in connection with the exercise of a stock appreciation right may
be in cash or shares of Common Stock or in a combination of cash and shares.
RESTRICTED STOCK AWARDS. The Committee may award shares of Common Stock to
participants under the 1996 Plan, subject to such restrictions on transfer and
conditions of forfeiture as it deems appropriate. Such conditions may include
requirements as to the continued service of the participant with the Company,
the attainment of specified performance goals or any other conditions determined
by the Compensation Committee. Subject to the transfer restrictions and
forfeiture restrictions relating to the restricted stock
51
<PAGE>
award, the participant will otherwise have the rights of a stockholder of the
Company, including all voting and dividend rights, during the period of
restriction.
PERFORMANCE AWARDS. The Compensation Committee may grant performance awards
denominated in specified dollar units ("Performance Units") or in shares of
Common Stock ("Performance Shares"). Performance awards are payable upon the
achievement of performance goals established by the Compensation Committee at
the beginning of the performance period, which may not exceed ten years from the
date of grant. At the time of grant, the Compensation Committee establishes the
number of units or shares, the duration of the performance period, the
applicable performance goals and, in the case of performance units, the
potential payment or range of payments for the performance awards. At the end of
the performance period, the Compensation Committee determines the payment to be
made based on the extent to which the performance goals have been achieved. The
Compensation Committee may consider significant unforeseen events during the
performance period when making the final award. Payments may be made in cash or
shares of Common Stock or in a combination of cash and shares.
PHANTOM STOCK. An award of phantom stock gives the participant the right to
receive cash at the end of a fixed vesting period based on the value of a share
of Common Stock at that time. Phantom stock units are subject to such
restrictions and conditions to payment as the Compensation Committee determines
are appropriate. At the time of grant, the Compensation Committee determines, in
its sole discretion, the number of units and the vesting period of the units,
and it may also set a maximum value of a unit. If the participant remains
employed by the Company throughout the applicable vesting period, he is entitled
to receive payment of a cash amount for each phantom stock unit equal in value
to the fair market value of one share of Common Stock on the last day of the
vesting period, subject to any maximum value limitation.
ADMINISTRATION. The 1996 Plan shall be administered by the Compensation
Committee of the Board of Directors, or such other committee as may be appointed
by the Board. Subject to the limitations set forth in the 1996 Plan, the
Compensation Committee has the authority to determine the persons to whom awards
will be granted, the time at which awards will be granted, the number of shares,
units or other rights subject to each award, the exercise, base or purchase
price of an award (if any), the time or times at which the award will become
vested, exercisable or payable and the duration of the award. The Compensation
Committee may provide for the acceleration of the vesting or exercise period of
an award at any time prior to its termination or upon the occurrence of
specified events. With the consent of the affected participant, the Compensation
Committee has the authority to cancel and replace awards previously granted with
new options for the same or a different number of shares and having a higher or
lower exercise or base price, and may amend the terms of any outstanding awards
to provide for an exercise or base price that is higher or lower than the
current exercise or base price.
RESERVATION OF SHARES. The Company has authorized and reserved 750,000
shares of Common Stock for issuance under the 1996 Plan. The shares may be
unissued shares or treasury shares. If any shares of Common Stock that are the
subject of an award are not issued or transferred and cease to be issuable or
transferable for any reason, such shares will no longer be charged against such
maximum share limitation and may again be made subject to awards under the 1996
Plan. In the event of certain corporate reorganizations, recapitalizations, or
other specified corporate transactions affecting the Company or the Common
Stock, proportionate adjustments may be made to the number of shares available
for grant and to the number of shares and prices under outstanding awards made
before the event.
TERM AND AMENDMENT. The 1996 Plan has a term of 10 years, subject to
earlier termination or amendment by the Board of Directors. All awards granted
under the 1996 Plan prior to its termination remain outstanding until exercised,
paid or terminated in accordance with their terms. The Board of Directors may
amend the 1996 Plan at any time, except that shareholder approval is required
for certain amendments to the extent necessary for purposes of Rule 16b-3 under
the Exchange Act.
52
<PAGE>
401(K) SAVINGS AND RETIREMENT PLAN
In 1993 the Company adopted the provisions of the amended and restated
Progenics 401(k) Plan (the "401(k) Plan"), a tax-qualified plan covering all
eligible employees, as defined therein. Each eligible employee may elect to
reduce his or her current compensation by 15%, subject to the statutory limit (a
maximum of $9,500 in 1996) and have the amount of the reduction contributed to
the 401(k) Plan. The Company has agreed to match 25% of up to the first 8% of
compensation that eligible employees contribute to the 401(k) Plan. In addition,
the Company may also make a discretionary contribution, as defined in the 401(k)
Plan, each year on behalf of all participants who are non-highly compensated
employees, as defined therein. The Company made matching contributions in an
aggregate amount of approximately $12,000 to eligible employees under the 401(k)
Plan in 1995. No matching contributions were made in 1995 to any of the Named
Executive Officers.
53
<PAGE>
CERTAIN TRANSACTIONS
During 1995, the Company borrowed an aggregate of $1,200,000 from certain
affiliates of Tudor Investment Corporation, a shareholder of the Company. The
loans provided for the accrual of interest at the rate of 10% per annum, with
interest and principal payable on demand. In December 1995, the principal amount
of the Note plus accrued interest of approximately $24,000 were exchanged for
approximately 61,000 Series C Units. See "Principal Stockholders" and
"Description of Capital Stock."
Since January 1, 1993, the Company has sold securities in the following
transactions with the following directors, officers, and stockholders who
beneficially own more than 5% of the outstanding Common Stock of the Company
("5% Stockholders"), and affiliates of such directors, officers and 5%
Stockholders.
<TABLE>
<CAPTION>
SERIES B
PREFERRED STOCK
ISSUED UPON
SERIES B EXERCISE OF SERIES C TOTAL
NAME UNITS(1) WARRANTS(2) UNITS(3) CONSIDERATION
- ------------------------------------------------------- ---------- ----------------- ---------- -------------
<S> <C> <C> <C> <C>
Entities affiliated with Tudor Investment
Corporation(4)........................................ 758,750 375,000 180,000 $ 8,510,000
Entities affiliated with Weiss, Peck & Greer
L.L.C.(4)............................................. 125,000 125,000 20,000 1,525,000
Paul F. Jacobson....................................... 12,500 12,500 5,000 212,500
David A. Scheinberg, M.D., Ph.D........................ -- -- 1,250 25,000
-------------
Total.................................................. $ 10,272,500
-------------
-------------
</TABLE>
- ------------------------------
(1) Each Series B Unit consisted of one share of Series B Preferred Stock and
one warrant to purchase one share of Series B Preferred Stock ("Series B
Warrant"). The purchase price per unit was $4.00.
(2) Shares issued upon exercise of Series B Warrants for an exercise price of
$5.00 per share.
(3) Each Series C Unit consists of four shares of Series C Preferred Stock and
one warrant to purchase one share of Series C Preferred Stock ("Series C
Warrant"). The purchase price per unit was $20.00. The Series C Warrants
remain outstanding.
(4) See "Principal Stockholders."
Various directors, officers, 5% Stockholders of the Company and affiliates
of such persons are entitled to certain registration rights with respect to
their securities of the Company. See "Shares Eligible for Future Sale."
The Company believes that the transactions described above were entered into
on terms no less favorable to the Company than could be obtained from third
parties on an arm's length basis.
54
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth the aggregate number of shares of Common
Stock beneficially owned as of September 30, 1996, assuming conversion of all
shares of the Company's Preferred Stock into an aggregate of 4,259,878 shares of
Common Stock upon the closing of this offering, by: (i) each person (or group of
affiliated persons) known by the Company to be a beneficial owner of more than
5% of the outstanding Common Stock of the Company; (ii) each director of the
Company; (iii) each of the Named Executive Officers; and (iv) all directors and
executive officers of the Company as a group.
<TABLE>
<CAPTION>
PERCENTAGE OF
SHARES BENEFICIALLY
NUMBER OF SHARES OWNED(1)(2)(3)
BENEFICIALLY ------------------------
OWNED BEFORE AFTER
NAME AND ADDRESS OF BENEFICIAL OWNER (1)(2)(3) OFFERING OFFERING
- -------------------------------------------------------------------------- ----------------- ----------- -----------
<S> <C> <C> <C>
Entities affiliated with Tudor Investment Corporation(4)(5)
600 Steamboat Road
Greenwich, CT 06830..................................................... 2,314,314 34.6% 26.6%
Paul J. Maddon, M.D., Ph.D.(6)
777 Old Saw Mill River Road
Tarrytown, NY 10591..................................................... 1,125,000 16.2% 12.6%
Paul Tudor Jones, II(4)(5)
600 Steamboat Road
Greenwich, CT 06830..................................................... 488,625 7.4% 5.7%
Charles A. Baker(7)....................................................... 33,750 * *
Mark F. Dalton(8)......................................................... 51,000 * *
Stephen P. Goff, Ph.D.(9)................................................. 56,250 * *
Elizabeth M. Greetham(10)................................................. 262,500 4.0% 3.1%
Paul F. Jacobson(11)...................................................... 189,039 2.9% 2.2%
David A. Scheinberg, M.D., Ph.D.(12)...................................... 47,545 * *
Robert J. Israel, M.D.(13)................................................ 22,500 * *
Robert A. McKinney(14).................................................... 36,000 * *
All directors and executive officers as a group (9 persons)(15)........... 1,823,584 25.6% 20.0%
</TABLE>
- ------------------------
* Less than 1%
(1) Except as indicated in the footnotes to this table and pursuant to
applicable community property laws, each stockholder possesses sole voting
and investment power with respect to the shares of Common Stock listed.
(2) The number of shares of Common Stock beneficially owned includes the shares
issuable pursuant to stock options and warrants that may be exercised within
60 days after September 30, 1996. Shares issuable pursuant to such options
and warrants are deemed outstanding for computing the percentage of
beneficial ownership of the person holding such options and warrants but are
not deemed outstanding for computing the percentage of beneficial ownership
of any other person. The number of shares of Common Stock outstanding after
this offering includes the 2,000,000 shares of Common Stock being offered
for sale by the Company in this offering. Share amounts of the Company's
Preferred Stock convertible into Common Stock (all of which will be
converted to Common Stock upon the closing of this offering) are stated on
an as converted basis.
(3) Assumes no exercise of the Underwriters' over-allotment option. See
"Underwriting."
(4) The number of shares owned by entities affiliated with Tudor Investment
Corporation ("TIC") consists of 1,704,501 shares held of record by Tudor BVI
Futures, Ltd., an international business company organized under the law of
the British Virgin Islands ("Tudor BVI"), 88,251 shares of Common Stock
issuable to Tudor BVI upon the exercise of currently exercisable warrants,
287,813 shares held of record by TIC, 164,499 shares held of record by Tudor
Arbitrage Partners L.P. ("TAP") and 41,125 shares of Common Stock issuable
to TAP upon the exercise of currently exercisable warrants, 22,500 shares of
record held by Tudor Proprietary Trading, L.L.C., a UK-based limited
liability corporation ("TPT"), and 5,625 shares of Common Stock issuable to
TPT upon the exercise of currently exercisable warrants. 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.
55
<PAGE>
(5) The shares held by Mr. Jones consist of 461,625 shares held of record by Mr.
Jones and 27,000 shares subject to stock options held by Mr. Jones
exercisable within 60 days of the date of this table. In addition, Mr. Jones
is the Chairman and principal stockholder of TIC, the Chairman and indirect
principal equity owner of the general partner of TAP, and the Chairman and
indirect principal equity owner of TPT. Mr. Jones may be deemed to
beneficially own the shares beneficially owned, or deemed beneficially
owned, by such entities. Mr. Jones disclaims beneficial ownership of such
shares.
(6) Includes 225,000 shares subject to stock options held by Dr. Maddon
exercisable within 60 days of the date of this table and an additional
150,000 shares subject to stock options which will accelerate upon the
effectiveness of this offering (assuming an initial public offering price of
$12.00 per share).
(7) Includes 3,750 shares of Common Stock issuable to the Baker Family Limited
Partnership ("BFLP") upon the exercise of currently exercisable warrants,
15,000 shares owned by the BFLP, and 15,000 shares subject to stock options
held by Mr. Baker exercisable within 60 days of the date of this table.
(8) Includes 34,500 shares held of record directly by Mr. Dalton and 16,500
shares of record held by DF Partners, a family partnership of which Mr.
Dalton is the managing general partner with a 5% interest. The remaining 95%
interest is held by trusts for the benefit of Mr. Dalton's children. As to
such 95% interest, Mr. Dalton disclaims beneficial interest. See "Management
-- Directors, Executive Officers and Key Management."
(9) Includes 18,750 shares subject to stock options held by Dr. Goff exercisable
within 60 days of the date of this table.
(10) Consists of 131,250 shares held of record by Weiss, Peck & Greer ("WPG")
Life Sciences Fund, L.P. ("WPGLSF") and 9,375 shares of Common Stock
issuable to WPGLSF upon the exercise of currently exercisable warrants and
116,250 shares held of record by WPG Institutional Life Sciences Fund, L.P.
("WPGILSF") and 5,625 shares of Common Stock issuable to WPGILSF upon the
exercise of currently exercisable warrants. Ms. Greetham, who is the
Portfolio Manager for both WPGLSF and WPGILSF, disclaims beneficial
ownership of all such shares except to the extent of her beneficial interest
in WPGLSF.
(11) Includes 3,750 shares of Common Stock issuable to Mr. Jacobson upon the
exercise of currently exercisable warrants and 27,000 shares subject to
stock options held by Mr. Jacobson exercisable within 60 days of the date of
this table.
(12) Includes 938 shares of Common Stock issuable to Dr. Scheinberg upon the
exercise of currently exercisable warrants and 42,857 shares subject to
stock options held by Dr. Scheinberg exercisable within 60 days of the date
of this table.
(13) Consists of 22,500 shares subject to stock options held by Dr. Israel
exercisable within 60 days of the date of this table.
(14) Consists of 36,000 shares subject to stock options held by Mr. McKinney
exercisable within 60 days of the date of this table.
(15) Includes shares held by affiliated entities as set forth in the above
table, 387,107 shares subject to stock options held by all officers and
directors exercisable within 60 days of the date of this table, 150,000
shares subject to stock options held by an officer and director which will
accelerate upon the effectiveness of this offering (assuming an initial
public offering price of $12.00 per share) and 23,438 shares issuable upon
the exercise of currently exercisable warrants beneficially owned by certain
directors.
56
<PAGE>
DESCRIPTION OF CAPITAL STOCK
AUTHORIZED STOCK; ISSUED AND OUTSTANDING SHARES
Upon the completion of this offering, the authorized capital stock of the
Company will consist of 40,000,000 shares of Common Stock, par value $.0013 per
share, and 20,000,000 shares of Preferred Stock, par value $.001 per share.
In October 1996 the Board of Directors and shareholders of the Company
approved a three-for-four reverse stock split of the Company's Common Stock. All
information in this Prospectus has been adjusted to reflect the reverse stock
split.
As of September 30, 1996, 2,294,675 shares of Common Stock and 5,679,826
shares of Preferred Stock were outstanding. Simultaneously with the closing of
this offering, all of the outstanding shares of Preferred Stock will
automatically be converted into an aggregate of 4,259,878 shares of Common Stock
pursuant to their terms.
COMMON STOCK
Assuming conversion of all outstanding Preferred Stock, at September 30,
1996 there were 6,554,553 shares of Common Stock outstanding held by
approximately 130 stockholders of record. Holders of Common Stock are entitled
to one vote for each share held of record on any matters voted upon by
stockholders and do not have any cumulative voting rights. Subject to
preferences that may be applicable to any outstanding Preferred Stock, holders
of Common Stock are entitled to receive ratably such dividends as may be
declared by the Board of Directors out of funds legally available therefor. See
"Dividend Policy." In the event of a liquidation, dissolution or winding up of
the Company, holders of Common Stock are entitled to share ratably in all assets
remaining after payment of liabilities and the liquidation preferences of any
outstanding Preferred Stock. Holders of Common Stock have no preemptive rights
and no right to convert their Common Stock into any other securities. There are
no redemption or sinking fund provisions applicable to the Common Stock. All
outstanding shares of Common Stock are, and all shares of Common Stock to be
outstanding upon completion of this offering will be, validly issued, fully paid
and nonassessable. All shares of Common Stock issuable upon conversion of the
Preferred Stock and upon exercise of warrants will be, upon such conversion or
exercise, validly issued, fully paid and nonassessable. The rights, preferences
and privileges of holders of Common Stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of Preferred
Stock which the Company may designate and issue in the future.
PREFERRED STOCK
Upon the closing of this offering, the conversion of the outstanding Series
A, Series B and Series C Preferred Stock and the filing of a Certificate of
Amendment to Certificate of Incorporation removing the designation of those
Series, the Company's Certificate of Incorporation will authorize the issuance
of up to 20,000,000 shares of Preferred Stock, $.001 par value per share, and
none of those shares will be outstanding or designated into any series. Under
the terms of the Certificate of Incorporation, the Board of Directors is
authorized, subject to any limitations prescribed by law, without stockholder
approval, to issue such shares of Preferred Stock in one or more series. Each
such series of Preferred Stock shall have such rights, preferences, privileges
and restrictions, including voting rights, dividend rights, conversion rights,
redemption privileges and liquidation preferences, as shall be determined by the
Board of Directors.
The purpose of authorizing the Board of Directors to issue Preferred Stock
and determine its rights and preferences is to eliminate delays associated with
a stockholder vote on specific issuances. The issuance of Preferred Stock, while
providing desirable flexibility in connection with possible acquisitions and
other corporate purposes, could have the effect of making it more difficult for
a third party to acquire, or of discouraging a third party from acquiring, a
majority of the outstanding voting stock of the Company. The Company has no
present plans to issue any shares of Preferred Stock.
57
<PAGE>
WARRANTS
The Company has issued warrants (the "Warrants") to purchase 347,249 shares
of Series C Preferred Stock. Each Warrant entitles the holder to purchase one
share of Series C Preferred Stock at a purchase price of $5.00 per share
(subject to adjustment in certain circumstances) during the five-year period
commencing on the warrant issuance date (December 8, 1995 or February 23, 1996).
Following the closing of this offering, the Warrants will become exercisable for
260,455 shares of Common Stock at a purchase price of $6.67 per share of Common
Stock (subject to adjustment in certain circumstances). If at any time after the
date of this offering but before December 31, 1996 the Company issues: (i)
additional shares of Common Stock; (ii) securities that are convertible into or
exchangeable for shares of Common Stock; or (iii) warrants or other rights to
subscribe for shares of Common Stock (collectively, "Additional Shares"), at a
price lower than the current exercise price of the Warrant, then the exercise
price of the Warrant will be reduced to such lower price and the number of
shares subject to the Warrant shall be proportionally increased. After December
31, 1996, if the Company issues Additional Shares at a price per share that is
lower than the then current market price (as defined) per share of the Common
Stock, then the exercise price of the Warrant will be reduced to a price equal
to (a) the sum of (i) the total number of shares of the Company outstanding
immediately prior to the issuance of the Additional Shares multiplied by the
then current exercise price of the Warrant, plus (ii) the consideration received
by the Company for the Additional Shares, divided by (b) the total number of
shares of capital stock of the Company outstanding immediately after the
issuance of the Additional Shares. In such case the number of shares subject to
the Warrant shall be proportionally increased. In no event is any adjustment of
the exercise price of the Warrant or the number of shares subject to the Warrant
required upon the grant of stock options or other stock incentives to employees
of the Company or upon the exercise of such options or incentives.
DELAWARE LAW AND CERTAIN CHARTER AND BY-LAW PROVISIONS
The Company is subject to the provisions of Section 203 of the General
Corporation Law of Delaware. Section 203 prohibits a publicly held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. A "business combination"
includes mergers, asset sales and other transactions resulting in a financial
benefit to the interested stockholder. Subject to certain exceptions, an
"interested stockholder" is a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of a corporation's
voting stock.
The Certificate of Incorporation contains certain provisions permitted under
the General Corporation Law of Delaware relating to the liability of directors.
The provisions eliminate a director's liability for monetary damages for a
breach of fiduciary duty, except in certain circumstances involving wrongful
acts, such as the breach of a director's duty of loyalty or acts or omissions
which involve intentional misconduct or a knowing violation of law. Further, the
Certificate of Incorporation contains provisions to indemnify the Company's
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware. The Company believes that these provisions will
assist the Company in attracting and retaining qualified individuals to serve as
directors.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is American Stock
Transfer & Trust Company.
58
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, based upon the number of shares
outstanding at September 30, 1996, there will be 8,554,553 shares of Common
Stock of the Company outstanding (exclusive of 947,007 shares covered by vested
options and warrants outstanding at September 30, 1996 and including 4,259,878
shares of Common Stock to be issued upon the automatic conversion of the
outstanding shares of Preferred Stock upon consummation of this offering). Of
these outstanding shares (and without taking into account the lock-up agreements
described below), approximately 4,504,095 shares, including the 2,000,000 shares
of Common Stock sold in this offering, will be immediately eligible for resale
in the public market without restriction under the Securities Act, except that
any shares purchased in this offering by "affiliates" of the Company, as that
term is defined in Rule 144 under the Securities Act ("Affiliates"), may
generally only be resold in compliance with applicable provisions of Rule 144.
Beginning approximately 90 days after the date of this Prospectus (and without
taking into account the lock-up agreements described below), approximately
2,963,711 additional shares of Common Stock and approximately 779,486 shares
covered by options exercisable within the 90-day period following the date of
this Prospectus will become eligible for immediate resale in the public market,
subject to compliance as to certain of such shares with applicable provisions of
Rules 144 and 701.
The Company, the executive officers and directors of the Company, and
certain securityholders, which executive officers, directors and securityholders
in the aggregate hold approximately 8,353,912 shares of Common Stock and shares
issuable upon the exercise of outstanding options and warrants (including
946,098 shares of Common Stock that may be acquired pursuant to the exercise of
vested options or warrants held by them) at September 30, 1996, have agreed
pursuant to certain agreements that they will not, without the prior written
consent of Oppenheimer & Co., Inc., offer, sell or otherwise dispose of the
shares of Common Stock beneficially owned by them for a period of 180 days from
the date of this Prospectus (120 days with respect to 45,000 of such shares).
The shares subject to the lock-up agreements include 2,189,897 of the shares of
Common Stock that would otherwise have become immediately eligible for resale in
the public market upon completion of this offering and approximately 2,963,711
of the shares of Common Stock and 778,577 of the shares covered by options
exercisable within the 90-day period following the date of this Prospectus that
would otherwise have become eligible for resale in the public market beginning
approximately 90 days after the date of this Prospectus, subject to compliance
as to certain of such shares with the applicable provisions of Rules 144 and
701.
In general, under Rule 144 as currently in effect, beginning approximately
90 days after the effective date of the Registration Statement of which this
Prospectus is a part, a stockholder, including an Affiliate, who has
beneficially owned his or her restricted securities (as that term is defined in
Rule 144) for at least two years from the later of the date such securities were
acquired from the Company or (if applicable) the date they were acquired from an
Affiliate is entitled to sell, within any three-month period, a number of such
shares that does not exceed the greater of 1% of the then outstanding shares of
Common Stock (approximately 85,546 shares immediately after this offering) or
the average weekly trading volume in the Common Stock during the four calendar
weeks preceding the date on which notice of such sale was filed under Rule 144,
provided certain requirements concerning availability of public information,
manner of sale and notice of sale are satisfied. In addition, under Rule 144(k),
if a period of at least three years has elapsed between the later of the date
restricted securities were acquired from the Company or (if applicable) the date
they were acquired from an Affiliate of the Company, a stockholder who is not an
Affiliate of the Company at the time of sale and has not been an Affiliate of
the Company for at least three months prior to the sale is entitled to sell the
shares immediately without compliance with the foregoing requirements under Rule
144. The Commission has proposed an amendment to Rule 144 which would reduce the
holding period required for shares subject to Rule 144 to become eligible for
sale in the public market from two years to one year, and from three years to
two years in the case of Rule 144(k).
Rule 701 under the Securities Act provides an exemption from the
registration requirements of the Securities Act for offers and sales of
securities issued pursuant to certain compensatory benefit plans, such
59
<PAGE>
as the Company's stock option and stock incentive plans, of a company not
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act. Securities issued pursuant to Rule 701 are defined as restricted securities
for purposes of Rule 144. However, 90 days after the issuer becomes subject to
the reporting provisions of the Exchange Act, the Rule 144 resale restrictions,
except for the broker's transaction requirement, are inapplicable for
non-affiliates. Affiliates are subject to all Rule 144 restrictions after this
90-day period, but without a holding period. In addition, the Company plans to
file a Form S-8 registration statement registering shares of stock issuable
pursuant to the Company's stock option plans.
Commencing on the first anniversary of the date of this Prospectus, all of
the stockholders of the Company who purchased shares prior to this offering will
be entitled to certain rights with respect to the registration under the
Securities Act of a total of approximately 6,815,000 shares of Common Stock (the
"Registrable Shares"), including 260,455 shares of Common Stock that may be
acquired pursuant to the exercise of outstanding warrants, under the terms of
agreements with the Company (the "Registration Agreements"). The holders of 20%
of the Registrable Shares (the "Minimum Number of Holders") may trigger the
obligation of the Company to use its best efforts to effect no more than two
public offerings on Forms S-1 or S-2, provided that the offering price per share
is at least $6.67 and the aggregate offering price to the public is at least $5
million. In addition, the Minimum Number of Holders shall have the right to
demand an unlimited number of registrations on Form S-3, provided that the
aggregate proposed public offering price of the securities to be included in
such registration shall be at least $1 million. In addition, if the Company
files a registration statement with the Commission, stockholders may elect to
include therein their respective Registrable Shares. There is no limit with
respect to the number of times holders of Registrable Shares may exercise such
"piggyback" registration rights. In addition, pursuant to the Employment
Agreement between the Company and Dr. Maddon, the Company granted to Dr. Maddon
separate "piggyback" registration rights which may be exercised at any time with
respect to his shares of Common Stock or shares of Common Stock issuable upon
exercise of any options (as of September 30, 1996, Dr. Maddon held options to
purchase 750,000 shares of Common Stock, of which options to purchase 225,000
shares of Common Stock were exercisable on that date or within 60 days
thereafter). Aquila also has been granted "piggyback" registration rights with
respect to the registration of shares of the Company's securities held by it,
which rights may be exercised at any time. The Company's obligation to register
shares pursuant to exercise of any of the foregoing "demand" or "piggyback"
registration rights is subject in any underwritten offering to the right of the
underwriters to exclude shares necessary to avoid interfering with the
successful marketing of the underwritten offering. The Company is generally
obligated to bear the expenses, other than underwriting discounts and
commissions, of all of these registrations.
Prior to this offering, there has been no public market for the Common
Stock. No precise prediction can be made as to the effect, if any, that market
sales of shares or the availability of shares for sale will have on the market
price of the Common Stock prevailing from time to time. The Company is unable to
estimate the number of shares that may be sold in the public market pursuant to
Rule 144, since this will depend on the market price of the Common Stock, the
personal circumstances of the sellers and other factors. Nevertheless, sales of
significant amounts of the Common Stock of the Company in the public market
could adversely affect the market price of the Company's Common Stock and could
impair the Company's ability to raise capital through an offering of its equity
securities.
60
<PAGE>
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
Company has agreed to sell to each of the Underwriters named below, and each of
the Underwriters, for whom Oppenheimer & Co., Inc. and Vector Securities
International, Inc. are acting as Representatives, has severally agreed to
purchase from the Company, the respective number of shares of Common Stock set
forth opposite the name of each Underwriter below.
<TABLE>
<CAPTION>
NUMBER
NAME OF SHARES
- --------------------------------------------------------------------------------- ----------
<S> <C>
Oppenheimer & Co., Inc...........................................................
Vector Securities International, Inc.............................................
----------
Total...................................................................... 2,000,000
----------
----------
</TABLE>
The Underwriters propose to offer the shares of Common Stock directly to the
public at the initial public offering price set forth on the cover page of this
Prospectus and in part to certain securities dealers at such price less a
concession of $ per share. The Underwriters may allow, and such dealers
may reallow, a concession not in excess of $ per share to certain other
brokers and dealers. After the shares of Common Stock are released for sale to
the public, the offering price and other selling terms may, from time to time,
be varied by the Representatives. The Underwriters are obligated to take and pay
for all of the shares of Common Stock offered hereby (other than those covered
by the over-allotment option described below), if any are taken.
The Company has granted to the Underwriters an option, exercisable for up to
30 days after the date of this Prospectus, to purchase up to an aggregate of
300,000 additional shares of Common Stock to cover over-allotments, if any. If
the Underwriters exercise such option, the Underwriters have severally agreed,
subject to certain conditions, to purchase approximately the same percentage
thereof that the number of shares to be purchased by each of them bears to the
2,000,000 shares of Common Stock offered hereby. The Underwriters may exercise
such option only to cover over-allotments made in connection with the sale of
the shares of Common Stock offered hereby. The Representatives have advised the
Company that the Underwriters do not intend to confirm sales in excess of 5% of
the shares offered hereby to any account over which they exercise discretionary
authority.
The Company has agreed to indemnify the Representatives of the Underwriters
and the several Underwriters against certain liabilities, including, without
limitation, liabilities under the Securities Act.
The Company's officers and directors and certain stockholders who own an
aggregate of 8,353,912 shares of Common Stock (including shares issuable upon
exercise of outstanding options and warrants) have agreed that they will not
directly or indirectly, sell, offer, contract to sell, make a short sale, pledge
or otherwise dispose of any shares of Common Stock (or any securities
convertible into or exchangeable or exercisable for any other rights to purchase
or acquire Common Stock other than shares of Common Stock issuable upon exercise
of outstanding options) owned by them, for a period of 180 days after the date
of this Prospectus (120 days with respect to one stockholder who owns 45,000
shares of Common Stock), without the prior written consent of Oppenheimer & Co.,
Inc., subject to certain limited exceptions. The Company has also agreed not to
issue, sell or register with the Commission for its own account or otherwise
dispose of, directly or indirectly, any equity securities of the Company (or any
securities
61
<PAGE>
convertible into or exercisable or exchangeable for equity securities of the
Company) for a period of 180 days after the date of this Prospectus, without the
prior written consent of Oppenheimer & Co., Inc., subject to certain limited
exceptions.
Prior to this offering, there has been no public market for the Common
Stock. The initial public offering price will be negotiated between the Company
and the Representatives. Among the factors to be considered in determining the
initial public offering price of the Common Stock, in addition to prevailing
market conditions, will be the Company's historical performance, capital
structure, estimates of the business potential and earnings prospects of the
Company, an assessment of the Company's management and consideration of the
above factors in relation to market values of companies in related businesses.
62
<PAGE>
LEGAL MATTERS
The validity of the Common Stock being offered hereby will be passed upon
for the Company by Dewey Ballantine, 1301 Avenue of the Americas, New York, New
York 10019, and for the Underwriters by Hale and Dorr, 60 State Street, Boston,
Massachusetts 02109.
EXPERTS
The balance sheets as of December 31, 1994, 1995 and September 30, 1996 and
the statements of operations, stockholders' equity (deficit) and cash flows for
each of the three years in the period ended December 31, 1995, for the nine
months ended September 30, 1996 and for the period from December 1, 1986
(inception) to September 30, 1996, included in this Prospectus, have been
included herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-1 under the Securities Act with respect to the Common Stock offered hereby.
This Prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits and the schedules thereto. For further
information with respect to the Company and such Common Stock, reference is made
to the Registration Statement and exhibits and schedules thereto. Statements
contained in this Prospectus as to the contents of any contract or other
document referred to are not necessarily complete, and, with respect to any
contract or other document filed as an exhibit to the Registration Statement,
each such statement is qualified in all respects by reference to such exhibit.
Copies of the Registration Statement and the exhibits thereto are on file at the
offices of the Commission and may be obtained upon payment of the prescribed fee
or may be examined without charge at the Commission's Public Reference Section,
Room 1024, 450 Fifth Street, N.W., Washington D.C. 20549, as well as at the
Commission's Regional Offices at Seven World Trade Center, New York, New York
10048, and Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material can be obtained in person
from the Public Reference Section of the Commission at its principal office
located at 450 Fifth Avenue, N.W., Washington, D.C. 20549, upon payment of the
prescribed fees. In addition, the Company is required to file electronic
versions of these documents with the Commission through the Commission's
Electronic Data Gathering, Analysis and Retrieval (EDGAR) system. The Commission
maintains a World Wide Web site at http://www.sec.gov that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission.
Upon completion of the offering, the Company will be subject to the
reporting requirements of the Exchange Act and in accordance therewith will file
annual and quarterly reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information may be
inspected, and copies of such material may be obtained upon payment of the
prescribed fees, at the Commission's Public Reference Section at the addresses
set forth above.
63
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Report of Independent Accountants.......................................................................... F-2
Financial Statements:
Balance Sheets as of December 31, 1994 and 1995 and September 30, 1996................................... F-3
Statements of Operations for the years ended December 31, 1993, 1994 and 1995, for the nine months ended
September 30, 1995 (unaudited) and 1996 and for the period from December 1, 1986 (inception) to
September 30, 1996..................................................................................... F-4
Statements of Stockholders' Equity (Deficit) for the period from December 1, 1986 (inception) to
September 30, 1996, including the years ended December 31, 1993, 1994 and 1995 and the nine months
ended September 30, 1996............................................................................... F-5
Statements of Cash Flows for the years ended December 31, 1993, 1994 and 1995, for the nine months ended
September 30, 1995 (unaudited) and 1996 and for the period from December 1, 1986 (inception) to
September 30, 1996..................................................................................... F-7
Notes to Financial Statements............................................................................ F-8
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
Progenics Pharmaceuticals, Inc.:
We have audited the accompanying balance sheets of PROGENICS
PHARMACEUTICALS, INC. (the "Company") (a development stage enterprise) as of
December 31, 1994 and 1995 and September 30, 1996, and the related statements of
operations, stockholders' equity (deficit) and cash flows for each of the three
years in the period ended December 31, 1995, for the nine months ended September
30, 1996 and for the period from December 1, 1986 (inception) to September 30,
1996. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of the Company as of December
31, 1994 and 1995 and September 30, 1996, and the results of its operations and
its cash flows for each of the three years in the period ended December 31,
1995, for the nine months ended September 30, 1996 and for the period from
December 1, 1986 (inception) to September 30, 1996, in conformity with generally
accepted accounting principles.
COOPERS & LYBRAND L.L.P.
New York, New York
October 28, 1996.
F-2
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------ SEPTEMBER 30,
1994 1995 1996
-------------- -------------- --------------
<S> <C> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents...................................... $ 2,275,236 $ 559,294 $ 1,745,776
Certificates of deposit........................................ 103,850 -- --
Grant revenue receivable....................................... -- 112,749 79,638
Other current assets........................................... 67,967 18,445 60,370
-------------- -------------- --------------
Total current assets....................................... 2,447,053 690,488 1,885,784
Fixed assets, at cost, net of accumulated depreciation and
amortization................................................... 959,136 966,118 890,391
Security deposits and other assets............................... 83,284 79,118 64,636
-------------- -------------- --------------
Total assets............................................... $ 3,489,473 $ 1,735,724 $ 2,840,811
-------------- -------------- --------------
-------------- -------------- --------------
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current liabilities:
Accounts payable and accrued expenses.......................... $ 209,341 $ 487,089 $ 874,628
Capital lease obligations, current portion..................... 218,494 184,344 117,092
-------------- -------------- --------------
Total current liabilities.................................. 427,835 671,433 991,720
Capital lease obligations........................................ 204,916 162,824 154,687
Deferred lease liability......................................... 29,782 49,740 26,420
-------------- -------------- --------------
Total liabilities.......................................... 662,533 883,997 1,172,827
-------------- -------------- --------------
Commitments and contingencies
Stockholders' equity:
Preferred stock, $.001 par value; 20,000,000 shares authorized:
Series A Preferred Stock, convertible; 4,000,000 shares
designated; shares issued and outstanding--
2,308,000 in 1994, 1995 and 1996 (liquidation value,
$6,055,750)................................................ 2,308 2,308 2,308
Series B Preferred Stock, convertible; 2,500,000 shares
designated; shares issued and outstanding-- 1,982,830 in
1994, 1995 and 1996 (liquidation value, $8,650,630)........ 1,983 1,983 1,983
Series C Preferred Stock, convertible; 3,750,000 shares
designated; shares issued and outstanding--424,184 in 1995
and 1,388,996 in 1996 (liquidation value, $2,120,920 in
1995 and $6,944,980 in 1996)............................... -- 424 1,389
-------------- -------------- --------------
Total preferred stock...................................... 4,291 4,715 5,680
Common Stock, $.0013 par value; 40,000,000 shares authorized;
shares issued and outstanding--2,249,675 in 1994 and
2,294,675 in 1995 and 1996................................... 2,924 2,983 2,983
Additional paid-in capital..................................... 15,974,008 18,501,808 22,798,674
Deficit accumulated during the development stage............... (13,154,283) (17,657,779) (21,139,353)
-------------- -------------- --------------
Total stockholders' equity................................. 2,826,940 851,727 1,667,984
-------------- -------------- --------------
Total liabilities and stockholders' equity................. $ 3,489,473 $ 1,735,724 $ 2,840,811
-------------- -------------- --------------
-------------- -------------- --------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-3
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
NINE MONTHS ENDED DECEMBER 1, 1986
YEARS ENDED DECEMBER 31, SEPTEMBER 30, (INCEPTION)
---------------------------------- ---------------------- THROUGH
1993 1994 1995 1995 1996 SEPTEMBER 30, 1996
---------- ---------- ---------- ---------- ---------- ------------------
<S> <C> <C> <C> <C> <C> <C>
(UNAUDITED)
Revenues:
Research grants................... $ 84,000 $ 503,518 $ 725,348 $ 502,109 $ 267,606 $ 1,735,152
Product sales..................... 49,715 51,971 49,752 40,252 67,422 358,335
Interest income................... 53,500 108,036 46,378 43,663 91,300 632,719
---------- ---------- ---------- ---------- ---------- ------------------
Total revenues................ 187,215 663,525 821,478 586,024 426,328 2,726,206
---------- ---------- ---------- ---------- ---------- ------------------
Expenses:
Research and development.......... 1,546,965 2,858,547 3,853,001 2,584,997 2,654,460 15,504,947
General and administrative........ 747,425 877,906 1,093,821 790,185 984,191 6,257,002
Interest expense.................. 38,071 50,399 87,279 52,347 39,564 440,717
Depreciation and amortization..... 249,371 288,407 290,873 229,135 229,687 1,662,893
---------- ---------- ---------- ---------- ---------- ------------------
Total expenses................ 2,581,832 4,075,259 5,324,974 3,656,664 3,907,902 23,865,559
---------- ---------- ---------- ---------- ---------- ------------------
Net loss...................... $(2,394,617) $(3,411,734) $(4,503,496) $(3,070,640) $(3,481,574) $(21,139,353)
---------- ---------- ---------- ---------- ---------- ------------------
---------- ---------- ---------- ---------- ---------- ------------------
Pro forma net loss per share data:
Pro forma net loss per share
(unaudited)..................... $(0.73) $(0.57)
---------- ----------
---------- ----------
Pro forma weighted average common
shares outstanding
(unaudited)..................... 6,134,721 6,134,721
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-4
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
FOR THE PERIOD FROM DECEMBER 1, 1986 (INCEPTION) TO SEPTEMBER 30, 1996,
INCLUDING THE YEARS ENDED DECEMBER 31, 1993, 1994 AND 1995
AND THE NINE MONTHS ENDED SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
PREFERRED STOCK COMMON STOCK ADDITIONAL
------------------------ ------------------------ PAID-IN
SHARES AMOUNT SHARES AMOUNT CAPITAL
----------- ----------- ----------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Sale of Common Stock for cash ($.0013 per share)..... 4,875,000 $ 6,338 $ 162
Sale of Common Stock for cash ($.13 per share)....... 180,000 234 23,766
Net loss for the year ended November 30, 1987........
----------- ----------- -------------
Balance at November 30, 1987..................... 5,055,000 6,572 23,928
Sale of Common Stock during May 1988 to an
employee/stockholder for cash of $150 and services
at estimated value ($1.07 per share)............... 112,500 146 120,004
Sale of Common Stock for cash ($1.07 per share)...... 1,026,574 1,335 1,093,665
Conversion of note payable to stockholder............ 27,500
Purchase of treasury stock during June for cash of
$20,000 and issuance of a note payable ($.53 per
share)............................................. (75,000) (98) (39,902)
Sale of Common Stock during November in consideration
for services rendered at estimated value ($1.33 per
share)............................................. 2,476 3 3,297
Net loss for the year ended November 30, 1988........
----------- ----------- -------------
Balance at November 30, 1988..................... 6,121,550 7,958 1,228,492
Sale of Series A Preferred Stock units for cash
($2.50 per unit)................................... 1,037,000 $ 1,037 2,591,463
Net loss for the year ended November 30, 1989........
----------- ----------- ----------- ----------- -------------
Balance at November 30, 1989..................... 1,037,000 1,037 6,121,550 7,958 3,819,955
Purchase of treasury stock during February for cash
of $231,328 and issuance of a note payable (average
$.08 per share).................................... (3,825,000) (4,973) (297,884)
Sale of Series A Preferred Stock units for cash
($2.50 per unit)................................... 128,000 128 319,872
Net loss for the year ended November 30, 1990........
----------- ----------- ----------- ----------- -------------
Balance at November 30, 1990..................... 1,165,000 1,165 2,296,550 2,985 3,841,943
Purchase of treasury stock for cash ($.0016 per
share)............................................. (46,875) (61) (14)
Exercise of Series A Preferred Stock warrants for
cash ($2.75 per share)............................. 1,143,000 1,143 3,142,107
Net loss for the year ended November 30, 1991........
----------- ----------- ----------- ----------- -------------
Balance at November 30, 1991..................... 2,308,000 2,308 2,249,675 2,924 6,984,036
Net loss for the one-month period ended December 31,
1991...............................................
----------- ----------- ----------- ----------- -------------
Balance at December 31, 1991..................... 2,308,000 2,308 2,249,675 2,924 6,984,036
<CAPTION>
DEFICIT
ACCUMULATED
DURING THE
DEVELOPMENT
STAGE TOTAL
-------------- -----------
<S> <C> <C>
Sale of Common Stock for cash ($.0013 per share)..... $ 6,500
Sale of Common Stock for cash ($.13 per share)....... 24,000
Net loss for the year ended November 30, 1987........ $ (33,642) (33,642)
-------------- -----------
Balance at November 30, 1987..................... (33,642) (3,142)
Sale of Common Stock during May 1988 to an
employee/stockholder for cash of $150 and services
at estimated value ($1.07 per share)............... 120,150
Sale of Common Stock for cash ($1.07 per share)...... 1,095,000
Conversion of note payable to stockholder............ 27,500
Purchase of treasury stock during June for cash of
$20,000 and issuance of a note payable ($.53 per
share)............................................. (40,000)
Sale of Common Stock during November in consideration
for services rendered at estimated value ($1.33 per
share)............................................. 3,300
Net loss for the year ended November 30, 1988........ (461,879) (461,879)
-------------- -----------
Balance at November 30, 1988..................... (495,521) 740,929
Sale of Series A Preferred Stock units for cash
($2.50 per unit)................................... 2,592,500
Net loss for the year ended November 30, 1989........ (1,151,167) (1,151,167)
-------------- -----------
Balance at November 30, 1989..................... (1,646,688) 2,182,262
Purchase of treasury stock during February for cash
of $231,328 and issuance of a note payable (average
$.08 per share).................................... (302,857)
Sale of Series A Preferred Stock units for cash
($2.50 per unit)................................... 320,000
Net loss for the year ended November 30, 1990........ (1,709,728) (1,709,728)
-------------- -----------
Balance at November 30, 1990..................... (3,356,416) 489,677
Purchase of treasury stock for cash ($.0016 per
share)............................................. (75)
Exercise of Series A Preferred Stock warrants for
cash ($2.75 per share)............................. 3,143,250
Net loss for the year ended November 30, 1991........ (1,673,439) (1,673,439)
-------------- -----------
Balance at November 30, 1991..................... (5,029,855) 1,959,413
Net loss for the one-month period ended December 31,
1991............................................... (95,675) (95,675)
-------------- -----------
Balance at December 31, 1991..................... (5,125,530) 1,863,738
</TABLE>
F-5
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT) (CONTINUED)
<TABLE>
<CAPTION>
PREFERRED STOCK COMMON STOCK ADDITIONAL
------------------------ ------------------------ PAID-IN
SHARES AMOUNT SHARES AMOUNT CAPITAL
----------- ----------- ----------- ----------- -------------
<S> <C> <C> <C> <C> <C>
<CAPTION>
DEFICIT
ACCUMULATED
DURING THE
DEVELOPMENT
STAGE TOTAL
-------------- -----------
<S> <C> <C>
Sale of Series B Preferred Stock units for
cash, net of expenses ($4.00 per unit)...... 428,750 $ 429 $ 1,714,271
Compensation expense in connection with the
issuance of stock options................... 190,926
Net loss for the year ended December 31,
1992........................................ $ (2,222,402)
---------- ---------- ---------- ---------- ----------- ------------
Balance at December 31, 1992.............. 2,736,750 2,737 2,249,675 $ 2,924 8,889,233 (7,347,932)
Sale of Series B Preferred Stock units for
cash, net of expenses ($4.00 per unit)...... 834,770 835 3,333,245
Compensation expense in connection with the
issuance of stock options................... 36,637
Net loss for the year ended December 31,
1993........................................ (2,394,617)
---------- ---------- ---------- ---------- ----------- ------------
Balance at December 31, 1993.............. 3,571,520 3,572 2,249,675 2,924 12,259,115 (9,742,549)
Exercise of Series B Preferred Stock warrants
for cash ($5.00 per share).................. 719,310 719 3,595,831
Compensation expense in connection with the
issuance of stock options................... 119,062
Net loss for the year ended December 31,
1994........................................ (3,411,734)
---------- ---------- ---------- ---------- ----------- ------------
Balance at December 31, 1994.............. 4,290,830 4,291 2,249,675 2,924 15,974,008 (13,154,283)
Sale of Series C Preferred Stock units for
cash ($20.00 per unit)...................... 179,450 179 897,070
Compensation expense in connection with the
issuance of stock options................... 107,363
Conversion of note payable and accrued
interest of $23,671 into Series C Preferred
Stock units ($20.00 per unit)............... 244,734 245 1,223,426
Issuance of Common Stock in consideration for
obtaining a license and supply agreement at
estimated value ($6.67 per share)........... 45,000 59 299,941
Net loss for the year ended December 31,
1995........................................ (4,503,496)
---------- ---------- ---------- ---------- ----------- ------------
Balance at December 31, 1995.............. 4,715,014 4,715 2,294,675 2,983 18,501,808 (17,657,779)
Sale of Series C Preferred Stock units for
cash, net of expenses ($20.00 per unit)..... 964,812 965 4,776,359
Compensation expense in connection with the
issuance of stock options................... 98,523
Deferred equity issuance costs................ (578,016)
Net loss for the nine months ended September
30, 1996.................................... (3,481,574)
---------- ---------- ---------- ---------- ----------- ------------
Balance at September 30, 1996............. 5,679,826 $ 5,680 2,294,675 $ 2,983 $22,798,674 $(21,139,353)
---------- ---------- ---------- ---------- ----------- ------------
---------- ---------- ---------- ---------- ----------- ------------
<CAPTION>
Sale of Series B Preferred Stock units for
cash, net of expenses ($4.00 per unit)...... $1,714,700
Compensation expense in connection with the
issuance of stock options................... 190,926
Net loss for the year ended December 31,
1992........................................ (2,222,402)
----------
Balance at December 31, 1992.............. 1,546,962
Sale of Series B Preferred Stock units for
cash, net of expenses ($4.00 per unit)...... 3,334,080
Compensation expense in connection with the
issuance of stock options................... 36,637
Net loss for the year ended December 31,
1993........................................ (2,394,617)
----------
Balance at December 31, 1993.............. 2,523,062
Exercise of Series B Preferred Stock warrants
for cash ($5.00 per share).................. 3,596,550
Compensation expense in connection with the
issuance of stock options................... 119,062
Net loss for the year ended December 31,
1994........................................ (3,411,734)
----------
Balance at December 31, 1994.............. 2,826,940
Sale of Series C Preferred Stock units for
cash ($20.00 per unit)...................... 897,249
Compensation expense in connection with the
issuance of stock options................... 107,363
Conversion of note payable and accrued
interest of $23,671 into Series C Preferred
Stock units ($20.00 per unit)............... 1,223,671
Issuance of Common Stock in consideration for
obtaining a license and supply agreement at
estimated value ($6.67 per share)........... 300,000
Net loss for the year ended December 31,
1995........................................ (4,503,496)
----------
Balance at December 31, 1995.............. 851,727
Sale of Series C Preferred Stock units for
cash, net of expenses ($20.00 per unit)..... 4,777,324
Compensation expense in connection with the
issuance of stock options................... 98,523
Deferred equity issuance costs................ (578,016)
Net loss for the nine months ended September
30, 1996.................................... (3,481,574)
----------
Balance at September 30, 1996............. $1,667,984
----------
----------
</TABLE>
Securities issued for non-cash consideration were valued based upon the
Board of Directors' estimate of fair value of the securities issued at the time
the services were rendered.
The accompanying notes are an integral part of the financial statements.
F-6
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF CASH FLOWS
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER
YEARS ENDED DECEMBER 31, 30,
---------------------------------------- ------------
1993 1994 1995 1995
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
(UNAUDITED)
Cash flows from operating activities:
Net loss during development stage.............................. $ (2,394,617) $ (3,411,734) $ (4,503,496) $ (3,070,640)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization.............................. 249,371 288,407 290,873 229,135
Compensation expense recognized in connection with issuance
of stock options......................................... 36,637 119,062 107,363 80,522
Loss on disposal of fixed assets........................... -- -- -- --
Noncash operating expenses................................. -- -- -- --
Common stock issued in consideration for operating
expenses................................................. -- -- 323,671 --
Changes in assets and liabilities:
(Increase) decrease in grant revenue receivable.......... -- -- (112,749) --
(Increase) decrease in other current assets.............. (5,100) (62,867) 49,522 50,765
(Increase) decrease in security deposits and other
assets................................................. (21,782) (2,663) (5,834) (4,428)
Increase (decrease) in accounts payable and accrued
expenses............................................... 18,615 69,165 273,399 159,102
(Decrease) increase in deferred lease liability.......... (19,646) 18,323 24,307 18,230
------------ ------------ ------------ ------------
Net cash used in
operating activities................................. (2,136,522) (2,982,307) (3,552,944) (2,537,314)
------------ ------------ ------------ ------------
Cash flows from investing activities:
Proceeds on sale of fixed assets............................... -- -- -- --
Capital expenditures........................................... (229,710) (323,426) (158,445) (114,408)
Redemption of certificates of deposit.......................... -- 10,000 113,850 113,850
Purchase of certificates of deposit............................ -- (10,000) -- --
Other.......................................................... -- -- -- --
------------ ------------ ------------ ------------
Net cash used in
investing activities................................. (229,710) (323,426) (44,595) (558)
------------ ------------ ------------ ------------
Cash flows from financing activities:
Proceeds from issuance of equity securities, less offering
expenses..................................................... 3,334,080 3,596,550 897,249 --
Payment of deferred equity issuance costs...................... -- -- -- --
Payment of capital lease obligations........................... (107,895) (132,414) (215,652) (166,281)
Proceeds from notes payable.................................... -- -- 1,200,000 800,000
Repayments of notes payable.................................... (73,923) (20,638) -- --
Borrowings from stockholder.................................... -- -- -- --
Repayment of borrowings from stockholder....................... -- -- -- --
Payments to acquire treasury shares............................ -- -- -- --
------------ ------------ ------------ ------------
Net cash provided by (used in) financing activities.... 3,152,262 3,443,498 1,881,597 633,719
------------ ------------ ------------ ------------
Net increase (decrease) in cash and cash equivalents... 786,030 137,765 (1,715,942) (1,904,153)
Cash and cash equivalents at beginning of period................. 1,351,441 2,137,471 2,275,236 2,275,236
------------ ------------ ------------ ------------
Cash and cash equivalents at end of period............. $ 2,137,471 $ 2,275,236 $ 559,294 $ 371,083
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Supplemental disclosure of cash flow information:
Cash paid for interest....................................... $ 38,071 $ 47,618 $ 90,060 55,128
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
<CAPTION>
DECEMBER 1, 1986
(INCEPTION)
THROUGH
1996 SEPTEMBER 30, 1996
------------ ------------------
<S> <C> <C>
Cash flows from operating activities:
Net loss during development stage.............................. $ (3,481,574) $ (21,139,353)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization.............................. 229,687 1,662,893
Compensation expense recognized in connection with issuance
of stock options......................................... 98,523 552,511
Loss on disposal of fixed assets........................... -- 17,550
Noncash operating expenses................................. -- 51,766
Common stock issued in consideration for operating
expenses................................................. -- 446,971
Changes in assets and liabilities:
(Increase) decrease in grant revenue receivable.......... 33,111 (79,638)
(Increase) decrease in other current assets.............. (41,925) (60,370)
(Increase) decrease in security deposits and other
assets................................................. 14,482 (64,636)
Increase (decrease) in accounts payable and accrued
expenses............................................... (137,545) 345,195
(Decrease) increase in deferred lease liability.......... (3,262) 50,827
------------ ------------------
Net cash used in
operating activities................................. (3,288,503) (18,216,284)
------------ ------------------
Cash flows from investing activities:
Proceeds on sale of fixed assets............................... -- 22,500
Capital expenditures........................................... (73,303) (1,336,287)
Redemption of certificates of deposit.......................... -- 182,850
Purchase of certificates of deposit............................ -- (182,850)
Other.......................................................... -- (29,326)
------------ ------------------
Net cash used in
investing activities................................. (73,303) (1,343,113)
------------ ------------------
Cash flows from financing activities:
Proceeds from issuance of equity securities, less offering
expenses..................................................... 4,777,324 21,501,303
Payment of deferred equity issuance costs...................... (72,990) (72,990)
Payment of capital lease obligations........................... (156,046) (892,113)
Proceeds from notes payable.................................... -- 1,277,500
Repayments of notes payable.................................... -- (257,124)
Borrowings from stockholder.................................... -- 200,000
Repayment of borrowings from stockholder....................... -- (200,000)
Payments to acquire treasury shares............................ -- (251,403)
------------ ------------------
Net cash provided by (used in) financing activities.... 4,548,288 21,305,173
------------ ------------------
Net increase (decrease) in cash and cash equivalents... 1,186,482 1,745,776
Cash and cash equivalents at beginning of period................. 559,294 --
------------ ------------------
Cash and cash equivalents at end of period............. $ 1,745,776 $ 1,745,776
------------ ------------------
------------ ------------------
Supplemental disclosure of cash flow information:
Cash paid for interest....................................... $ 39,564 $ 440,717
------------ ------------------
------------ ------------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-7
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS
(1995 INTERIM DATA IS UNAUDITED)
1. ORGANIZATION AND BUSINESS
Progenics Pharmaceuticals, Inc. (the "Company") is a biopharmaceutical
company focusing on the development and commercialization of innovative products
for the treatment and prevention of cancer and viral diseases, including human
immunodeficiency virus ("HIV") infection. The Company was incorporated in
Delaware on December 1, 1986. The Company has no products approved by the U.S.
Food and Drug Administration and as a development stage enterprise, the
Company's primary efforts to date have been devoted to research and development,
raising capital, acquiring equipment, setting up laboratories, and clinical
testing of product candidates. In addition to the normal risks associated with a
new business venture, there can be no assurance that the Company's research and
development will be successfully completed, that any products developed will
obtain necessary government regulatory approval or that any approved products
will be commercially viable. In addition, the Company operates in an environment
of rapid change in technology and is dependent upon the continued services of
its current employees, consultants and subcontractors.
The Company has sustained net losses and negative cash flows from operations
since its inception and expects these conditions to continue for the foreseeable
future. The Company has received assurances from a stockholder that it will
provide the financing necessary to enable the Company to continue to operate
through February 28, 1998 if alternative financing, as defined, such as an
initial public offering, is not obtained. The Company will need to raise
additional financing through public or private equity financings, collaborative
or other arrangements with corporate sources, or other sources of financing to
fund operations after February 28, 1998. There can be no assurance that such
additional financing, if at all available, can be obtained on terms reasonable
to the Company. In the event the Company is unable to raise additional capital,
operations after February 28, 1998 will need to be scaled back or discontinued.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRODUCT SALES
The Company has derived all of its product revenue from the sale of research
reagents to primarily one customer. Product sales revenue is recognized at the
time reagents are shipped. The reagents are products of the Company's research
and development efforts. The Company maintains no inventory of reagent and cost
of product sales is not material.
RESEARCH GRANTS
The Company has been awarded government research grants from two grantors
("Grantors"). The respective grants are used to subsidize the Company's research
projects ("Projects") regarding HIV. Grant revenue is recognized on a
straight-line basis over the lives of the Projects. Receivables from the
Grantors represent a concentration of credit risk to the Company. For each of
the three years in the period ended December 31, 1995 and the nine months ended
September 30, 1996, all of the Company's research grant revenue came from the
Grantors.
F-8
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
FIXED ASSETS
Leasehold improvements, furniture and fixtures, and equipment are stated at
cost. Furniture, fixtures, and equipment are depreciated on a straight-line
basis over their estimated useful lives. Leasehold improvements are amortized on
a straight-line basis over the life of the lease or of the improvement,
whichever is shorter.
PATENTS
As a result of research and development efforts conducted by the Company, it
has applied, or is applying, for a number of patents to protect proprietary
inventions. All costs associated with patents are expensed as incurred.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments which have maturities of
three months or less, when acquired, to be cash equivalents. The carrying amount
reported in the balance sheet for cash and cash equivalents approximates its
fair value. Cash, cash equivalents and certificates of deposit, subject the
Company to concentrations of credit risk. At September 30, 1996, the Company had
invested approximately $1,569,000 in funds with a major investment company and
held approximately $177,000 in a single commercial bank. At December 31, 1995,
the Company had invested approximately $33,000 in funds with a major investment
company and held approximately $526,000 in a single commercial bank. At December
31, 1994, the Company had invested approximately $2,100,000 in funds and three
month certificates of deposit with a major investment company and held
approximately $267,000, including certificates of deposit totaling approximately
$114,000, in a single commercial bank.
NET LOSS PER SHARE
PRO FORMA PER SHARE DATA (UNAUDITED)
The pro forma per share data included in the Statements of Operations has
been computed using the weighted average number of shares of common stock
outstanding. Common stock issuable upon the exercise of outstanding stock
options and warrants are excluded from the computation as their effect is
anti-dilutive, except that, pursuant to a Securities and Exchange Commission
Staff Accounting Bulletin, equity securities, including options and warrants,
issued at prices below the assumed public offering price of $12.00 during the
12-month period prior to the proposed offering have been included in the
calculation as if they were outstanding for all periods presented. In addition,
the weighted average number of shares of convertible preferred stock that will
convert automatically into shares of common stock upon the closing of the
Company's proposed initial public offering has been included in the calculation
from their original date of issuance.
PER SHARE DATA IN ACCORDANCE WITH APB NO. 15
The per share data found below has been computed in accordance with
Accounting Principles Board Opinion No. 15 ("APB No. 15"). Such computation is
based on the net loss for the period divided by the weighted average number of
shares of common stock outstanding. APB No. 15 requires that the weighted
F-9
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
average number of shares outstanding exclude the number of common shares
issuable upon the exercise of outstanding options and warrants and the
conversion of preferred stock since such inclusion would be anti-dilutive.
<TABLE>
<CAPTION>
NINE MONTHS
YEARS ENDED DECEMBER 31, ENDED SEPTEMBER 30,
----------------------------------------- --------------------------
1993 1994 1995 1995 1996
------------ ------------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
(UNAUDITED)
Net loss per share........................ $ (1.06) $ (1.52) $ (1.99) $ (1.36) $ (1.52)
------------ ------------- ------------ ------------ ------------
------------ ------------- ------------ ------------ ------------
Shares used in calculation of net loss per
share................................... 2,249,675 2,249,675 2,264,839 2,254,784 2,294,675
</TABLE>
INCOME TAXES
The Company accounts for income taxes in accordance with the provisions of
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes" ("SFAS 109"). SFAS 109 requires that the Company recognize deferred tax
liabilities and assets for the expected future tax consequences of events that
have been included in the financial statements or tax returns. Under this
method, deferred tax liabilities and assets are determined on the basis of the
difference between the tax basis of assets and liabilities and their respective
financial reporting amounts ("temporary differences") at enacted tax rates in
effect for the years in which the temporary differences are expected to reverse.
RISKS AND UNCERTAINTIES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates. See also
Note 7(c).
IMPACT OF THE ADOPTION OF RECENTLY ISSUED ACCOUNTING STANDARDS
The Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to be Disposed of" ("SFAS 121") in March 1995.
SFAS 121 requires companies to review their long-lived assets and certain
identifiable intangibles (collectively, "Long-Lived Assets") for impairment
whenever events or changes in circumstances indicate that the carrying value of
a Long-Lived Asset may not be recoverable. The Company adopted the provisions of
SFAS 121 as of January 1, 1996 which had no impact on the Company's financial
position or results of operations.
The Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS
123") in October 1995. SFAS 123 requires companies to estimate the fair value of
common stock, stock options, or other equity instruments ("Equity Instrument")
issued to employees using pricing models which take into account various
factors, such as the current price of the common stock, volatility, and the
expected life of the Equity Instrument. SFAS 123 permits companies to elect
either to provide pro forma note disclosure or adjust operating results for the
amortization of the estimated value of the Equity Instrument as compensation
expense over the vesting
F-10
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
period of the Equity Instrument. The Company has elected to provide pro forma
note disclosure which will appear in its annual financial statements for the
year ending December 31, 1996 and, therefore, the adoption of SFAS 123 will have
no effect on the Company's financial position or results of operations.
STATEMENT OF CASH FLOWS
Supplemental disclosure of noncash investing and financing activities:
For the years ended December 31, 1993, 1994 and 1995:
Capital lease obligations of approximately $71,000, $423,000 and
$139,000 were incurred during the years ended December 31, 1993, 1994 and
1995, respectively, when the Company leased new equipment.
In August 1995, the Company issued 45,000 restricted shares of Common
Stock ("Restricted Shares") in consideration for obtaining a license and
supply agreement. The estimated fair market value of such shares at the date
of issuance was $300,000.
In December 1995, a shareholder exchanged a note payable of $1,200,000
and accrued interest of approximately $24,000 for approximately 61,200
units. Each unit consists of four shares of Series C Preferred Stock and one
five-year warrant to purchase one share of Series C Preferred Stock. (See
Note 5.)
Included in accounts payable, at December 31, 1993, were obligations for
approximately $30,000 of fixed asset additions.
For the nine months ended September 30, 1996:
Capital lease obligations of approximately $81,000 were incurred during
the nine months ended September 30, 1996 when the Company leased new
equipment.
Included in accounts payable, at September 30, 1996, were deferred
equity issuance costs of approximately $505,000.
For the period from December 1, 1986 (inception) to September 30, 1996:
Capital lease obligations of approximately $1,164,000 were incurred
during the period from December 1, 1986 (inception) to September 30, 1996
when the Company leased new equipment.
During 1991, the Company financed the acquisition of laboratory
equipment by issuing a note payable totaling approximately $64,000 to the
supplier.
In February 1990, the Company issued a note payable, which at the time
of issuance had a net present value of approximately $123,000, as partial
consideration for the acquisition of approximately 3,800,000 shares of
Common Stock and approximately $52,000 of operating expenses. The shares of
Common Stock were held as treasury stock and then subsequently retired.
In June 1988, the Company issued a note payable in the amount of $20,000
as partial consideration for the purchase of 75,000 shares of the Company's
Common Stock. Such shares, at the time they were acquired, were held as
treasury stock and then subsequently retired.
F-11
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
During 1988, a stockholder/creditor forgave repayment of a note payable
totaling approximately $28,000. This transaction was recorded as a
contribution to capital.
3. FIXED ASSETS
Fixed assets, including amounts under capitalized lease obligations, consist
of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------- SEPTEMBER 30,
1994 1995 1996
------------ ------------- -------------
<S> <C> <C> <C>
Computer equipment.................................................... $ 279,445 $ 286,425 $ 167,654
Machinery and equipment............................................... 1,354,811 1,637,460 1,391,018
Furniture and fixtures................................................ 181,782 190,008 138,415
Leasehold improvements................................................ 29,702 29,702 29,702
------------ ------------- -------------
1,845,740 2,143,595 1,726,789
Less, accumulated depreciation and amortization....................... (886,604) (1,177,477) (836,398)
------------ ------------- -------------
$ 959,136 $ 966,118 $ 890,391
------------ ------------- -------------
------------ ------------- -------------
</TABLE>
4. ACCOUNTS PAYABLE AND ACCRUED EXPENSES
Accounts payable and accrued expenses consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------- SEPTEMBER 30,
1994 1995 1996
---------- ---------- -------------
<S> <C> <C> <C>
Accounts payable.......................................................... $ 69,515 $ 153,749 $ 112,104
Fees payable to Scientific Advisory Board members......................... 54,000 116,250 67,000
Accrued payroll and related costs......................................... 15,325 56,235 32,890
Legal and accounting fees payable......................................... 70,501 156,506 638,227
Deferred lease liability, current portion................................. -- 4,349 24,407
---------- ---------- -------------
$ 209,341 $ 487,089 $ 874,628
---------- ---------- -------------
---------- ---------- -------------
</TABLE>
5. STOCKHOLDERS' EQUITY
On October 2, 1996, the Board of Directors (the "Board") of the Company
approved a three-for-four reverse stock split of common stock. All common stock
data, including loss per share and weighted average number of shares outstanding
has been retroactively amended to reflect the stock split. The Company's
Certificate of Incorporation, as amended, authorizes the Company to issue
60,000,000 shares, of which 40,000,000 shares are designated as common shares,
par value $.0013, and 20,000,000 shares are designated as preferred shares, par
value $.001. The Board has the authority to issue common and preferred shares,
in series, with rights and privileges determined by the Board. 4,000,000
preferred shares are designated as Series A Preferred Stock ("Series A"),
2,500,000 shares are designated as Series B Preferred Stock ("Series B") and
3,750,000 shares are designated as Series C Preferred Stock ("Series C")
(collectively the "Preferred Stock"). During June 1995, the Board rescinded the
designation of unissued Class A Common
F-12
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
5. STOCKHOLDERS' EQUITY (CONTINUED)
Stock and designated all common shares as common stock ("Common Stock"). In the
event that the Company declares and pays a dividend, the Preferred Stock and
Common Stock will receive such dividend on a pro rata basis, as defined.
Distributions in liquidation shall be pro rated to the Preferred Stock and
Common Stock up to specified amounts, as defined and, thereafter, pro rata based
upon the number of shares outstanding on a Common Stock equivalent basis, as
defined. Each share of Preferred Stock is convertible, at the option of the
holder, into .75 share of Common Stock, adjusted in accordance with a formula
should the Company sell Preferred or Common Stock at a per share price below the
original issuance price paid by existing Preferred Stock shareholders
("Preferred Stockholder"), as defined. Conversion is automatic at the earlier of
(i) the closing of a public offering of the Company's Common Stock in which
certain defined aggregate proceeds are raised and the per share selling price
exceeds a defined level, or (ii) the date the Preferred Stockholders have
converted a defined number of shares of Preferred Stock. The conversion rate is
subject to anti-dilution provisions, as defined. Preferred Stockholders are
entitled to vote with Common Stockholders as a single class. In addition,
certain changes in the Company's capital structure, as defined, which includes,
under certain situations, the issuance of additional series of Preferred or
Common Stock (the "Proposal"), require a separate vote by Preferred
Stockholders. If less than a majority of Preferred Stockholders vote in favor of
the Proposal and if the Common Stockholders approve the Proposal, the Company
has the right to redeem all outstanding shares of Preferred Stock at per share
prices ranging from $3.46 to $8.84, as defined. The Preferred Stock also is
subject to transfer restrictions, as defined, and the Company has the right of
first refusal to acquire such shares in the event the holder proposes to sell
any or all shares to any person other than a permitted transferee.
During 1988, the Company entered into subscription agreements ("Agreements")
in connection with the sale of approximately 1,000,000 shares of its Common
Stock at a per share price of $1.07. The Agreements contain a provision whereby
investors have the right to receive additional shares of Common Stock, as
defined, in the event the Company sells Common Stock at a per share price below
$1.07. This right terminates upon any registered public offering, any sale of
the Company or its assets, or upon the Company selling an aggregate of 7,500,000
shares of Common Stock.
During 1989 and 1990, the Company raised $2,913,000 from the sale of
1,165,000 Units (the "A Units") in a private placement. Each A Unit consisted of
one share of Series A Preferred Stock and one warrant (the "A Warrant") which
entitled the holder to purchase one share of Series A Preferred Stock at a price
of $2.75 per share. During 1991, 1,143,000 A Warrants were exercised yielding
$3,143,000 to the Company. The remaining unexercised A Warrants have expired.
During 1992 and 1993, the Company raised $5,049,000, after expenses, from
the sale of 1,263,520 Units (the "B Units") in a private placement. Each B Unit
consisted of one share of Series B Preferred Stock and one warrant (the "B
Warrant") which, as amended, entitled the holder to purchase one share of Series
B Preferred Stock at a price of $5.00 per share. During 1994, 719,310 B Warrants
were exercised yielding $3,597,000 to the Company. The remaining unexercised B
Warrants have expired.
During the fourth quarter of 1995 and the first quarter of 1996, the Company
raised $897,000 and $4,777,000, net of expenses, from the sale of approximately
44,900 Units and 241,203 Units, respectively, (the "C Units") in a private
placement. In addition, during December 1995, a stockholder converted a note
payable (see Note 6). Each C Unit consists of four shares of Series C Preferred
Stock and one five-year warrant (the "C Warrant") which entitles the holder to
purchase one share of Series C Preferred Stock at
F-13
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
5. STOCKHOLDERS' EQUITY (CONTINUED)
$5.00 per share or, if exercised subsequent to an initial public offering, as
defined, .75 share of Common Stock at $6.67 per share. The number of C Warrants
and their exercise price are subject to adjustment in the event the Company
issues additional shares of Common Stock at below defined per share prices. As
of September 30, 1996, 347,249 C Warrants were issued and outstanding and fully
exercisable.
6. NOTE PAYABLE--STOCKHOLDER
During 1995, the Company borrowed $1,200,000 under a promissory note from a
stockholder. The promissory note, as amended and restated, provided for interest
to accrue at a rate of 10% per annum. Interest and principal were payable upon
demand, but not before December 8, 1995. During December 1995, the promissory
note plus accrued interest of $23,671 were exchanged for approximately 61,200 C
Units (see Note 5).
7. COMMITMENTS AND CONTINGENCIES:
(A) OPERATING LEASES
The Company leases office and laboratory space under a noncancelable
sublease agreement expiring December 30, 1997 (the "sublease") and a lease
agreement expiring April 30, 1998 (the "lease"). The sublease, as amended, and
the lease provide for escalations of the minimum rent during the lease term as
well as additional charges based upon usage of certain utilities in excess of
defined amounts ("Additional Utility Charges"). The Company recognizes rental
expense from the sublease and lease on the straight-line basis. During 1994 and
1995, the Company recognized rental expense in excess of amounts paid of
approximately $18,000 and $24,000, respectively, while during the year ended
December 31, 1993 and the nine months ended September 30, 1996, approximately
$20,000 and $3,000 of previously recognized rent expense, which had been
included as a deferred lease liability at December 31, 1992 and 1995,
respectively, was paid.
The Company also leases office equipment and an automobile under
noncancelable operating leases. The leases expire at various times through July
1997.
Future minimum annual payments under all operating lease agreements,
including the sublease and lease, are as follows:
<TABLE>
<CAPTION>
MINIMUM
YEARS ENDING ANNUAL
SEPTEMBER 30, PAYMENTS
--------------- ------------
<S> <C>
1997............................................................................ $ 669,034
1998............................................................................ 403,685
------------
$ 1,072,719
------------
------------
</TABLE>
Rental expense totaled approximately $353,000, $506,000, $657,000, $481,000
and $2,854,000 for the years ended December 31, 1993, 1994 and 1995, for the
nine months ended September 30, 1996 and for the period from December 1, 1986
(inception) to September 30, 1996, respectively. Additional Utility Charges, as
defined above, were not material for these periods.
F-14
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
7. COMMITMENTS AND CONTINGENCIES: (CONTINUED)
(B) CAPITAL LEASES
The Company leases certain equipment under various noncancelable capital
lease agreements. The leases are for periods ranging from two to five years,
after which the Company: (i) either has the option or is required to purchase
the equipment at defined amounts or (ii) may extend the lease for up to one
additional year at defined monthly payments or (iii) is required to return the
equipment, as per the respective lease agreements. Certain capital leases, as
amended, contain various covenants which include maintaining a minimum tangible
net worth, as defined, of at least $625,000 during the term of the leases. This
covenant indirectly restricts the Company's ability to pay dividends.
As of September 30, 1996, minimum annual payments under all capital leases,
including required payments to acquire leased equipment, are as follows:
<TABLE>
<CAPTION>
MINIMUM
YEARS ENDING ANNUAL
SEPTEMBER 30, PAYMENTS
--------------- ----------
<S> <C>
1997.............................................................................. $ 160,983
1998.............................................................................. 82,715
1999.............................................................................. 56,909
2000.............................................................................. 37,863
2001.............................................................................. 19,901
----------
358,371
Less, amounts representing interest............................................... 86,592
----------
Present value of net minimum capital lease payments............................... $ 271,779
----------
----------
</TABLE>
Leased equipment included as a component of fixed assets was approximately
$591,000, $731,000 and $799,000 at December 31, 1994 and 1995 and September 30,
1996, respectively; related accumulated depreciation was approximately $119,000,
$242,000 and $342,000 for the same respective periods.
(C) LICENSING AGREEMENTS:
(I) UNIVERSITIES
In March 1989, the Company (as licensee) entered into a worldwide licensing
agreement with Columbia University ("Columbia"). The license, as amended during
October 1996, provides the Company with the exclusive right to use certain
technology developed on behalf of Columbia. According to the terms of the
agreement, the Company is required to pay nonrefundable licensing fees
("Licensing Fees"), payable in installments by defined dates or, if earlier, as
certain milestones associated with product development ("Milestones") occur, as
defined, which include the manufacture and distribution of a product which uses
the licensed technology, at various times over the next eight years. In
addition, the Company is required to remit royalties based upon the greater of
minimum royalties, as defined, or a percentage of net sales of products which
utilize the licensed technology and a portion of sublicensing income, as
defined. The licensing agreement may be terminated by Columbia under certain
circumstances
F-15
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
7. COMMITMENTS AND CONTINGENCIES: (CONTINUED)
which includes the Company's failure to achieve the Milestones; however,
Columbia shall not unreasonably withhold its consent to revisions to the due
dates for achieving the Milestones under certain circumstances. If not
terminated early, the agreement shall continue until expiration, lapse or
invalidation of Columbia's patents on the licensed technology. The Company has
the right to terminate the agreement at any time upon 90 days prior written
notice. The termination of the license could have a material adverse effect on
the business of the Company.
In January 1991, the Company (as licensee) also entered into a non-exclusive
licensing agreement with Stanford University whereby the Company has the
non-exclusive, non-transferable right to use certain technology owned by the
university. According to the terms of the agreement, the Company will be
required to remit royalties at various rates, as defined. Royalties shall
continue to be payable, irrespective of termination of this license agreement,
until such time as all sales of products which utilize the licensed technology
shall have ceased.
In September 1996, the Company (as licensee) entered into a licensing
agreement with The Regents of the University of California ("U of C"). According
to the terms of the agreement, the Company is required to remit royalties based
upon the greater of minimum royalties or a percentage of product sales and a
portion of sublicensing income, as defined. The agreement can be terminated by
the Company upon 90 days notice or by U of C in the event the Company fails to
perform, which includes the achievement of certain defined milestones; otherwise
the agreement terminates upon the lapse of U of C's patent regarding the
licensed technology. Early termination of the agreement could have a material
adverse effect on the business of the Company. Although the Company intends to
use its best efforts to comply with the terms of the agreement, there can be no
assurances that the agreement will not be terminated.
(II) SLOAN-KETTERING INSTITUTE FOR CANCER RESEARCH
In November 1994, the Company (as licensee) entered into a worldwide
exclusive licensing agreement with Sloan-Kettering Institute for Cancer Research
("Sloan-Kettering") whereby the Company has the exclusive right to use certain
technology owned by Sloan-Kettering. Certain employees of Sloan-Kettering are
consultants to the Company (see Note 7(d)). According to the terms of the
agreement, the Company was required to pay nonrefundable, noncreditable
licensing fees in installments. Commencing in 1995, the Company is required to
remit royalties based upon the greater of minimum royalties, as defined, or as a
percentage of sales of any licensed product, as defined ("Product Royalties"),
and sublicense income, as defined, earned under sublicenses granted by the
Company in accordance with this licensing agreement ("Sublicense Royalties"). In
the event that no Product Royalties or Sublicense Royalties are due in a given
calendar year, then a defined percentage of that year's minimum royalty will be
creditable against future Product Royalties or Sublicense Royalties due
Sloan-Kettering. The licensing agreement may be terminated by Sloan-Kettering in
the event that the Company fails to achieve certain defined objectives, which
include the manufacture and distribution of a product which uses the licensed
technology, over the next six years, or if the Company fails to satisfy certain
other contractual obligations ("Early Termination"); otherwise the agreement
shall terminate either upon the expiration or abandonment of Sloan-Kettering's
patents on the technology licensed, or 15 years from the date of first
commercial sale, as defined, whichever is later. With regard to Early
Termination, Sloan-Kettering shall not unreasonably withhold its consent to
revisions to the due dates for achieving the defined objectives under certain
circumstances. The
F-16
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
7. COMMITMENTS AND CONTINGENCIES: (CONTINUED)
Company has the right to terminate the agreement at any time upon 90 days prior
written notice ("Company Termination"). In the event of Early Termination or
Company Termination, all licensing rights under the agreement would revert to
Sloan-Kettering. Early Termination of the license could have a material adverse
effect on the business of the Company. Although the Company intends to use its
best efforts to comply with the terms of the license, there can be no assurance
that the licensing agreement will not be terminated.
(III) AQUILA BIOPHARMACEUTICALS, INC.
In August 1995, the Company (as licensee) entered into a license and supply
agreement (the "L&S Agreement") with Aquila Biopharmaceuticals, Inc. ("Aquila").
Under the terms of the L&S Agreement, the Company obtained a coexclusive license
to use certain technology and a right to purchase QS-21 adjuvant (the "Product")
from Aquila for use in the Company's research and development activities. In
consideration for the license, the Company paid a nonrefundable, noncreditable
license fee and issued 45,000 restricted shares of the Company's Common Stock
("Restricted Shares") to Aquila. The Restricted Shares are nontransferable with
this restriction lapsing upon the Company's achievement of certain milestones
("L&S Milestones"), as defined. In the event that any one or more L&S Milestones
do not occur, the underlying Restricted Shares would be returned to the Company.
The fair value of the Restricted Shares, combined with the noncreditable license
fee, were expensed during 1995 as research and development. In addition, the
Company will be required to remit royalties based upon the net sales of products
sold using the licensed technology ("Licensed Products") and a defined
percentage of any sublicense fees and royalties payable to the Company with
respect to Licensed Products. The L&S Agreement may be terminated by Aquila in
the event that the Company fails to achieve certain defined objectives, which
include the manufacture and distribution of a Licensed Product, over the next
seven years ("Early Termination"); otherwise the L&S Agreement shall terminate
upon the expiration of Aquila's patents on the technology licensed. With regard
to Early Termination, Aquila shall not unreasonably withhold its consent to
revisions to the due dates for achieving the L&S Milestones under certain
circumstances. The Company has the right to terminate the L&S Agreement at any
time upon 90 days prior written notice ("Company Termination"), as defined. In
the event of Early Termination or Company Termination, all licensing rights
under the agreement would revert to Aquila. Early termination of the L&S
Agreement would have a material adverse effect on the business of the Company.
Although the Company intends to use its best efforts to comply with the terms of
the L&S Agreement, there can be no assurance that the agreement will not be
terminated.
In connection with the above agreements, the Company has recognized expenses
totaling approximately $10,000, $22,500, $382,500, $22,500 and $807,500 for the
years ended December 31, 1993, 1994 and 1995, for the nine months ended
September 30, 1996 and for the period from December 1, 1986 (inception) to
September 30, 1996, respectively. Such expenses include the fair value of the
Restricted Shares. In addition, remaining payments associated with milestones or
defined objectives under the above agreements total $650,000. Future annual
minimum royalties under the licensing agreements above are not significant.
F-17
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
7. COMMITMENTS AND CONTINGENCIES: (CONTINUED)
(D) CONSULTING AGREEMENTS
As part of the Company's research and development efforts it enters into
consulting agreements ("Agreements") with external scientific specialists
("scientists"). These Agreements contain varying terms and provisions which
include fees to be paid by the Company and services to be provided by the
scientists, some of whom are members of the Company's Scientific Advisory Board.
Certain scientists have purchased Common Stock or received stock options which
are subject to vesting provisions, as defined. The Company has recognized
expenses with regards to these Agreements totaling approximately $136,000,
$261,000, $245,000, $232,000 and $1,398,000 for the years ended December 31,
1993, 1994 and 1995, for the nine months ended September 30, 1996, and for the
period from December 1, 1986 (inception) to September 30, 1996, respectively.
Such expenses include the fair value of stock options.
8. STOCK OPTION PLANS:
(A) 1989 NON-QUALIFIED STOCK OPTION PLAN
On April 1, 1989, the Company adopted a Non-Qualified Stock Option Plan (the
"89 Plan"), under which a maximum of 375,000 shares of Common Stock, adjusted
for stock splits, stock dividends and other capital adjustments, as defined, are
available for stock option awards to employees, consultants, directors and other
individuals who render services to the Company. For a period of ten years
following the termination for any reason of an optionee's employment or active
involvement with the Company, as determined by the Board, the Company has the
right to repurchase any or all shares of Common Stock held by the optionee
and/or any or all of the vested but unexercised portion of any option granted
under the 89 Plan to such optionee at a purchase price defined by the 89 Plan.
The 89 Plan terminated on April 1, 1994, and any option granted before
termination of the 89 Plan shall continue under the terms of the 89 Plan.
Certain options issued from the 89 Plan entitle the holders to purchase
shares of Common Stock at a per share price of $1.33, which was less than the
estimated fair market value of the Common Stock, as determined by the Board of
Directors, on the date of grant. As a result, the Company is recognizing
compensation expense on a pro rata basis, over the respective options' vesting
periods of three to ten years, for the difference between the estimated fair
market value of the Common Stock on the date the option was granted and the
exercise price. The Company recognized compensation expense of approximately
$37,000, $33,000, $21,000, $17,000 and $299,000 for the years ended December 31,
1993, 1994 and 1995, for the nine months ended September 30, 1996, and for the
period from December 1, 1986 (inception) to September 30, 1996, respectively, in
connection with these options.
F-18
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
8. STOCK OPTION PLANS: (CONTINUED)
Transactions involving stock option awards under the 89 Plan during 1993,
1994, 1995 and the nine months ended September 30, 1996 are summarized as
follows:
<TABLE>
<CAPTION>
NUMBER PRICE
OF SHARES PER SHARE
----------- ----------------
<S> <C> <C>
Balance outstanding, December 31, 1992............................................... 311,332 $1.33 to $3.67
1993: Granted........................................................................ 54,188 $5.33
-----------
Balance outstanding, December 31, 1993.......................................... 365,520 $1.33 to $5.33
1994: Canceled....................................................................... (259) $1.33
-----------
Balance outstanding, December 31, 1994.......................................... 365,261 $1.33 to $5.33
1995: Canceled....................................................................... (11,250) $3.67
-----------
Balance outstanding, December 31, 1995 and September 30, 1996................... 354,011 $1.33 to $5.33
-----------
-----------
</TABLE>
The total number of options exercisable under the 89 Plan at September 30,
1996 was 276,386 at exercise prices of $1.33 to $5.33 per share. As of September
30, 1996, no shares are available for future grants.
(B) 1993 STOCK OPTION PLAN
On December 2, 1993, the Company adopted a Stock Option Plan (the "93
Plan"). Under the 93 Plan, as amended, a maximum of 750,000 shares of Common
Stock, adjusted for stock splits, stock dividends, and other capital
adjustments, as defined, are available for stock option awards. Awards issued
under the 93 Plan may qualify as incentive stock options ("ISOs"), as defined by
the Internal Revenue Code, or may be granted as non-qualified stock options.
Under the 93 Plan, the Compensation Committee of the Board of Directors (the
"Committee") may award options to employees, directors who are not employees and
other individuals who render services to the Company. For a period of ten years
following the termination for any reason of an optionee's employment or active
involvement with the Company, as determined by the Board of Directors, the
Company shall have the right to repurchase any or all shares of Common Stock
acquired under the 93 Plan and held by the optionee and/or any or all of the
vested but unexercised portion of any option granted under the 93 Plan to such
optionee at a purchase price, as defined by the 93 Plan. This right will
terminate upon the Company's completion of a public offering of securities, as
defined. The 93 Plan will terminate on December 2, 2003; however, any option
outstanding as of the termination date shall remain outstanding until such
option expires in accordance with the terms of the respective grant.
During 1994, the Committee granted 582,000 stock options under the 93 Plan.
Included therein were 450,000 stock options ("94 Options") which entitle the
holders to purchase shares of Common Stock at a per share price of $5.33, which
was less than the estimated fair market value of the Common Stock, as determined
by the Board of Directors, on the date of issuance. As a result, the Company is
recognizing compensation expense on a pro rata basis, over the respective
options' vesting periods of seven years, for the difference between the
estimated fair market value of the Common Stock on the date the option was
issued and the exercise price. In addition, during 1996, the Committee granted
94,500 options under the 93 Plan. Included therein were 15,000 options issued to
consultants ("Consultants' Options") that are
F-19
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
8. STOCK OPTION PLANS: (CONTINUED)
compensatory. Accordingly, the Company is recognizing compensation expense on a
pro rata basis over the respective options' vesting periods of four to five
years. The Company recognized compensation expense of approximately $86,000 for
each of the years ended December 31, 1994 and 1995, approximately $82,000 for
the nine months ended September 30, 1996 and approximately $254,000 for the
period from December 1, 1986 (inception) to September 30, 1996, in connection
with the 94 Options and the Consultants' Options.
The following table summarizes the activity in the 93 Plan:
<TABLE>
<CAPTION>
NUMBER PRICE
OF SHARES PER SHARE
----------- ----------------
<S> <C> <C>
1993: Granted........................................................................ 63,975 $5.33
-----------
Balance outstanding, December 31, 1993.......................................... 63,975 $5.33
1994: Granted........................................................................ 582,000 $5.33 to $6.67
-----------
Balance outstanding, December 31, 1994.......................................... 645,975 $5.33 to $6.67
1995: Granted........................................................................ 4,500 $6.67
Cancelled....................................................................... (33,750) $5.33 to $6.67
-----------
Balance outstanding, December 31, 1995.......................................... 616,725 $5.33 to $6.67
1996: Granted........................................................................ 94,500 $5.33 to $6.67
Cancelled....................................................................... (24,000) $5.33
-----------
Balance outstanding, September 30, 1996......................................... 687,225 $5.53 to $6.67
-----------
-----------
</TABLE>
The total number of options exercisable under the 93 Plan at September 30,
1996 was 185,166 at exercise prices of $5.33 to $6.67 per share. As of September
30, 1996, shares available for future grants under the 93 Plan amounted to
62,775.
(C) 1993 EXECUTIVE STOCK OPTION PLAN
On December 15, 1993, the Company adopted an Executive Stock Option Plan
(the "Executive Plan"), under which a maximum of 750,000 shares of Common Stock,
adjusted for stock splits, stock dividends, and other capital adjustments, as
defined, are available for stock option awards. Awards issued under the
Executive Plan may qualify as ISOs, as defined by the Internal Revenue Code, or
may be granted as non-qualified stock options. Under the Executive Plan, the
Board may award options to senior executive employees (including officers who
may be members of the Board) of the Company, as defined. The Executive Plan will
terminate on December 15, 2003; however, any option outstanding as of the
termination date shall remain outstanding until such option expires in
accordance with the terms of the respective grant.
During December 1993, the Board awarded a total of 750,000 stock options
under the Executive Plan to one officer, of which 664,774 were non-qualified
options ("NQOs") and 85,226 were ISOs. The NQOs and ISOs entitle the officer to
purchase an equal number of shares of Common Stock at prices of $5.33 and $5.87
per share, respectively, which represented the estimated fair market value and
110% of the estimated fair market value of the Company's Common Stock at the
date of grant, as determined by the Board of Directors. 375,000 of the options
vest over a period of five years, with the remaining 375,000
F-20
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
8. STOCK OPTION PLANS: (CONTINUED)
options vesting in full on the tenth anniversary of the date of grant; however,
vesting will be accelerated in the event of the effective date of an initial
public offering of the Company's Common Stock or immediately before the closing
of an acquisition of the Company.
750,000 options were outstanding at September 30, 1996 under the Executive
Plan, of which 225,000 were exercisable. As of September 30, 1996, no shares
were available for future grants under the Executive Plan.
(D) 1996 STOCK INCENTIVE PLAN
During May 1996, the Company adopted the 1996 Stock Incentive Plan (the "96
Plan"). The 96 Plan, as amended, provides for the award of 750,000 shares of
Common Stock, adjusted for stock splits, stock dividends and other capital
adjustments as defined. Under the 96 Plan, the Committee may award stock to
eligible individuals which includes employees, advisors or consultants to the
Company. The form of the award will be determined by the Committee and includes
stock options, which may be ISOs, stock appreciation rights, restricted stock,
performance awards or phantom stock as defined (collectively "Awards"). The
Committee will also determine the term and vesting of the Award and the
Committee may in its discretion accelerate the vesting of an award at any time.
To date there have been no Awards issued from the 96 Plan.
9. EMPLOYEE SAVINGS PLAN
The Company, during 1993, adopted the provisions of the amended and restated
Progenics Pharmaceuticals 401(k) Plan (the "Amended Plan"). The terms of the
Amended Plan, among other things, allow eligible employees, as defined, to
participate in the Amended Plan by electing to contribute to the Amended Plan a
percentage of their compensation to be set aside to pay their future retirement
benefits, as defined. The Company has agreed to match 25% of up to the first 8%
of compensation that eligible employees contribute to the Amended Plan, as
defined. In addition, the Company may also make a discretionary contribution, as
defined, each year on behalf of all participants who are non-highly compensated
employees, as defined. The Company made matching contributions of approximately
$3,000, $10,000, $12,000, $8,000 and $33,000 to the Amended Plan for the years
ended December 31, 1993, 1994 and 1995, for the nine months ended September 30,
1996, and for the period from December 1, 1986 (inception) to September 30,
1996, respectively.
10. INCOME TAXES
There is no provision (benefit) for federal or state income taxes for all
periods presented, since the Company has incurred operating losses since
inception and has established a valuation allowance equal to the total deferred
tax asset.
F-21
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
(1995 INTERIM DATA IS UNAUDITED)
10. INCOME TAXES (CONTINUED)
The tax effect of temporary differences, net operating loss carry-forwards
and research and experimental tax credit carry-forwards as of December 31, 1994
and 1995 and September 30, 1996 are as follows:
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER
---------------------- 30,
1994 1995 1996
---------- ---------- -----------
<S> <C> <C> <C>
Deferred tax assets and valuation
allowance:
Net operating loss carry-forwards... $4,022,832 $4,350,960 $ 5,136,183
Fixed assets........................ 93,877 133,225 163,470
Deferred charges.................... 1,228,617 2,666,772 3,291,562
Research and experimental tax credit
carry-forwards.................... 426,234 491,681 524,323
Valuation allowance................. (5,771,560) (7,642,638) (9,115,538)
---------- ---------- -----------
-- -- --
---------- ---------- -----------
---------- ---------- -----------
</TABLE>
As of September 30, 1996, the Company has available, for tax purposes,
unused net operating loss carry-forwards of approximately $12,400,000 which will
expire in various years from 2002 to 2011. The Company's research and
experimental tax credit carry-forwards expire in various years from 2003 to
2011. Future ownership changes may limit the future utilization of these net
operating loss and research and experimental tax credit carry-forwards as
defined by the federal tax code.
11. NOTE TO INTERIM FINANCIAL STATEMENTS FOR THE NINE MONTHS ENDED SEPTEMBER 30,
1995 (UNAUDITED)
BASIS OF PRESENTATION
The interim financial statements for the nine months ended September 30,
1995 are unaudited and reflect adjustments, consisting of only normal recurring
accruals, which are, in the opinion of the Company's management, necessary for a
fair presentation of the financial position and results of operations for the
periods presented. Operating results for any interim period are not necessarily
indicative of the results for the full year.
STATEMENT OF CASH FLOWS
Supplemental disclosure of noncash investing and financing activities:
Capital lease obligations of approximately $63,000 were incurred during the
nine months ended September 30, 1995 when the Company leased new equipment.
Included in accounts payable, at September 30, 1995, were obligations for
approximately $32,000 of fixed asset additions.
F-22
<PAGE>
PROGENICS PLANS TO INITIATE PHASE I/II CLINICAL TRIALS IN 1997 OF ITS TWO MOST
ADVANCED HIV PRODUCT CANDIDATES, PRO 542 AND PRO 367.
PRO 542 IS PROGENICS' THERAPEUTIC PRODUCT CANDIDATE DESIGNED TO NEUTRALIZE HIV.
[DIAGRAM DEPICTING PRO 542, PROGENICS' THERAPEUTIC PRODUCT CANDIDATE DESIGNED TO
NEUTRALIZE HIV]
PRO 367 IS PROGENICS' THERAPEUTIC PRODUCT CANDIDATE DESIGNED TO DESTROY HIV-
INFECTED CELLS.
[DIAGRAM DEPICTING PRO 367, PROGENICS' THERAPEUTIC PRODUCT CANDIDATE DESIGNED TO
DESTROY HIV-INFECTED CELLS]
<PAGE>
- ------------------------------------------------
------------------------------------------------
- ------------------------------------------------
------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF ANY OFFER TO BUY BY ANYONE IN ANY JURISDICTION IN
WHICH SUCH OFFER TO SELL OR A SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE AS OF WHICH INFORMATION IS FURNISHED.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
Prospectus Summary............................................ 3
Risk Factors.................................................. 6
Use of Proceeds............................................... 17
Dividend Policy............................................... 17
Capitalization................................................ 18
Dilution...................................................... 19
Selected Financial Data....................................... 20
Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 21
Business...................................................... 25
Management.................................................... 45
Certain Transactions.......................................... 54
Principal Stockholders........................................ 55
Description of Capital Stock.................................. 57
Shares Eligible for Future Sale............................... 59
Underwriting.................................................. 61
Legal Matters................................................. 63
Experts....................................................... 63
Additional Information........................................ 63
Index to Financial Statements................................. F-1
</TABLE>
-------------------
UNTIL , 1996 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL
DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
2,000,000 SHARES
[COMPANY LOGO]
Pharmaceuticals, Inc.
COMMON STOCK
--------------
PROSPECTUS
--------------
OPPENHEIMER & CO., INC.
VECTOR SECURITIES INTERNATIONAL, INC.
, 1996
- ------------------------------------------------
------------------------------------------------
- ------------------------------------------------
------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of the estimated amounts of all
expenses payable by the Registrant in connection with the registration of the
Common Stock offered hereby, other than underwriting discounts and commissions:
<TABLE>
<S> <C>
Registration Fee--Securities and Exchange Commission.............. $ 9,061
NASD Filing Fee................................................... 3,490
Blue Sky fees and expenses........................................ *
Accountants' fees and expenses.................................... *
Legal fees and expenses........................................... *
Printing and engraving expenses................................... *
Transfer agent and registrar fees................................. *
Miscellaneous..................................................... *
---------
Total................................................. $ *
---------
---------
</TABLE>
- ------------------------
* To be completed by amendment.
ITEM 14. 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
II-1
<PAGE>
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 Company's Restated Certificate of Incorporation contains such a
provision.
The Company's Certificate of Incorporation and By-Laws provide that the
Company shall indemnify officers and directors, and to the extent authorized by
the Board of Directors, employees and agents of the Company, 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 Company to purchase and maintain insurance against any liability asserted
against any director, officer, employee or agent of the Company arising out of
his capacity as such.
The Company has entered into Indemnification Agreements with each of its
officers and directors, pursuant to which the Company has agreed to indemnify
and advance expenses to such officers and directors to the fullest extent
permitted by applicable law.
The Company has obtained an insurance policy providing coverage for certain
liabilities of its officers and directors.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since January 1, 1993, the registrant has sold the following securities that
were not registered under the Securities Act:
From January 1993 through August 1993, the registrant issued a total of
272,270 shares of Series B Preferred Stock, $.001 par value per share, and
warrants to purchase 272,270 shares of Series B Preferred Stock, to 33
individuals and entities for an aggregate purchase price of $1,089,080 in cash.
Such transaction was exempt from registration under the Securities Act by virtue
of Section 4(2) thereof.
In September 1993 and October 1993, the registrant issued a total of 562,500
shares of Series B Preferred Stock, and warrants to purchase 562,500 shares of
Series B Preferred Stock, to 3 entities for an aggregate purchase price of
$2,250,000. Such transaction was exempt from registration under the Securities
Act by virtue of Section 4(2) thereof.
In February 1994, the registrant issued a total of 719,310 shares of Series
B Preferred Stock to 22 individuals and entities for an aggregate purchase price
of $3,596,550 in cash. Such transaction was exempt from registration under the
Securities Act by virtue of Section 4(2) thereof.
In November 1995 and December 1995, the registrant issued a total of 424,184
shares of Series C Preferred Stock, $.001 par value per share, and warrants to
purchase 106,046 shares of Series C Preferred Stock, to 7 individuals and
entities, for an aggregate purchase price of $897,249 in cash and conversion of
a note payable in the principal amount of $1,200,000 plus accrued interest
thereon of $23,671. Such transaction was exempt from registration under the
Securities Act by virtue of Section 4(2) thereof.
In December 1995, the registrant issued 45,000 shares of Common Stock,
$.0013 par value per share, to an entity as partial consideration for a license
agreement. Such transaction was exempt from registration under the Securities
Act by virtue of Section 4(2) thereof.
II-2
<PAGE>
In January 1996 and February 1996, the registrant issued a total of 964,812
shares of Series C Preferred Stock, and warrants to purchase 241,203 shares of
Series C Preferred Stock, to 59 individuals and entities for an aggregate
purchase price of $4,824,060 in cash. Such transaction was exempt from
registration under the Securities Act by virtue of Section 4(2) thereof.
From January 1, 1993 to September 30, 1996, the Company issued options to
purchase 1,549,163 shares of Common Stock (of which options to purchase 57,750
shares of Common Stock subsequently have been cancelled) to employees and
consultants of the Company pursuant to the 1989 Option Plan, the 1993 Option
Plan and the 1993 Executive Option Plan. None of such options has been
exercised. The Company believes that the transactions described in this
paragraph were exempt from the registration requirements of the Securities Act
under Section 4(2) of the Securities Act or Regulation D, or by reason of Rule
701 promulgated under the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
**1.1 --Form of Underwriting Agreement
3.1 --Certificate of Incorporation, as amended, of the Registrant
**3.2 --By-Laws of the Registrant
*4.1 --Specimen Certificate for Common Stock, $0.0013 par value per share, of the
Registrant
*5.1 --Opinion of Dewey Ballantine
**10.1 --Form of Registration Rights Agreement
**10.2 --1989 Non-Qualified Stock Option Plan
**10.3 --1993 Stock Option Plan, as amended
**10.4 --1993 Executive Stock Option Plan
10.5 --Amended 1996 Stock Incentive Plan
**10.6 --Form of Indemnification Agreement
**10.7 --Employment Agreement dated December 15, 1993 between the Registrant and Dr. Paul
J. Maddon
**10.8 --Letter dated August 25, 1994 between the Registrant and Dr. Robert J. Israel
**10.9 --Sublease dated July 13, 1988 between the Registrant and Union Carbide Corporation
**+10.10 --gp120 Supply Agreement dated July 19, 1995 between the Registrant and E. I.
DuPont De Nemours and Company, as amended October 27, 1995
**+10.11 --sCD4 Supply Agreement dated June 27, 1995 between the Registrant and E. I. DuPont
De Nemours and Company
**+10.12 --Supply Agreement dated February 8, 1996 between the Registrant and Intracel
Corporation
**+10.13 --License Agreement dated November 17, 1994 between the Registrant and
Sloan-Kettering Institute for Cancer Research
**+10.14 --Clinical Trial Agreement dated December 12, 1994 between the Registrant and
Sloan-Kettering Institute for Cancer Research
**+10.15 --QS-21 License and Supply Agreement dated August 31, 1995 between the Registrant
and Aquila Biopharmaceuticals Inc.
**+10.16 --gp120 Sublicense Agreement dated March 17, 1995 between the Registrant and Aquila
Biopharmaceuticals Inc.
**+10.17 --Cooperative Research and Development Agreement dated February 25, 1993 between
the Registrant and the Centers for Disease Control and Prevention
*10.18 --License Agreement dated March 1, 1989, as amended by a Letter Agreement dated
March 1, 1989 and as amended by a Letter Agreement dated October 22, 1996 between
the Registrant and the Trustees of Columbia University
**+10.19 --License Agreement dated June 25, 1996 between the Registrant and The Regents of
the University of California
**+10.20 --KLH Supply Agreement dated July 1, 1996 between the Registrant and PerImmune,
Inc.
</TABLE>
II-3
<PAGE>
<TABLE>
<C> <S>
**+10.21 --sCD4 Supply Agreement dated November 3, 1993 between the Registrant and E.I.
DuPont De Nemours and Company
10.22 --Lease dated June 30, 1994 between the Registrant and Keren Limited Partnership
11.1 --Statement of computation of loss per share for the years ended December 31, 1993,
1994 and 1995
11.2 --Statement of computation of loss per share for the nine months ended September
30, 1995 and 1996
11.3 --Pro forma statement of computation of loss per share
23.1 --Consent of Coopers & Lybrand L.L.P.
*23.2 --Consent of Dewey Ballantine (contained in Exhibit 5.1)
**24.1 --Power of Attorney (included on page II-5)
27.1 --Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Commission.
(b) Financial Statement Schedules
All schedules have been omitted because they are not required or because the
required information is given in the Financial Statements or Notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the underwriters,
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
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 undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Tarrytown,
State of New York, on October 30, 1996.
PROGENICS PHARMACEUTICALS, INC.
BY: /S/ PAUL J. MADDON, M.D., PH.D.
-----------------------------------------
Paul J. Maddon, M.D., Ph.D.
Chairman of the Board,
Chief Executive Officer and President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to the Registration Statement has been signed by the following persons
on October 30, 1996 in the capacities indicated:
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ PAUL J. MADDON, M.D., Chairman of the Board,
PH.D.* Chief Executive Officer
- ------------------------------ and President (principal October 30, 1996
Paul J. Maddon, M.D., Ph.D. executive officer)
Vice President, Finance and
/s/ ROBERT A. MCKINNEY* Operations, Treasurer
- ------------------------------ (principal accounting and October 30, 1996
Robert A. McKinney financial officer)
/s/ CHARLES A. BAKER* Director
- ------------------------------ October 30, 1996
Charles A. Baker
/s/ MARK F. DALTON* Director
- ------------------------------ October 30, 1996
Mark F. Dalton
/s/ STEPHEN P. GOFF, PH.D.* Director
- ------------------------------ October 30, 1996
Stephen P. Goff, Ph.D.
/s/ ELIZABETH M. GREETHAM* Director
- ------------------------------ October 30, 1996
Elizabeth M. Greetham
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
<S> <C> <C>
/s/ PAUL F. JACOBSON* Director
- ------------------------------ October 30, 1996
Paul F. Jacobson
/s/ DAVID A. SCHEINBERG, M.D., Director
PH.D.*
- ------------------------------ October 30, 1996
David A. Scheinberg, M.D.,
Ph.D.
</TABLE>
<TABLE>
<S> <C> <C>
*By: /s/ ROBERT A. MCKINNEY
------------------------------------------
Robert A. McKinney
(As Attorney-in-Fact)
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION PAGE
- ----------------------------- ------------------------------------------------------------------------------- ---------
<C> <S> <C>
**1.1 --Form of Underwriting Agreement
3.1 --Certificate of Incorporation, as amended, of the Registrant
**3.2 --By-Laws of the Registrant
*4.1 --Specimen Certificate for Common Stock, $.0013 par value per share, of the
Registrant
*5.1 --Opinion of Dewey Ballantine
**10.1 --Form of Registration Rights Agreement
**10.2 --1989 Non-Qualified Stock Option Plan
**10.3 --1993 Stock Option Plan as amended
**10.4 --1993 Executive Stock Option Plan
10.5 --Amended 1996 Stock Incentive Plan
**10.6 --Form of Indemnification Agreement
**10.7 --Employment Agreement dated December 15, 1993 between the Registrant and Dr.
Paul J. Maddon
**10.8 --Letter dated August 25, 1994 between the Registrant and Dr. Robert J. Israel
**10.9 --Sublease dated July 13, 1988 between the Registrant and Union Carbide
Corporation
**+10.10 --gp120 Supply Agreement dated July 19, 1995 between the Registrant and E. I.
DuPont De Nemours and Company, as amended, October 27, 1995
**+10.11 --sCD4 Supply Agreement dated June 27, 1995 between the Registrant and E. I.
DuPont De Nemours and Company
**+10.12 --Supply Agreement dated February 8, 1996 between the Registrant and Intracel
Corporation
**+10.13 --License Agreement dated November 17, 1994 between the Registrant and
Sloan-Kettering Institute for Cancer Research
**+10.14 --Clinical Trial Agreement dated December 12, 1994 between the Registrant and
Sloan-Kettering Institute for Cancer Research
**+10.15 --QS-21 License and Supply Agreement dated August 31, 1995 between the
Registrant and Cambridge Biotech Corporation
**+10.16 --gp120 Sublicense Agreement dated March 17, 1995 between the Registrant and
Cambridge Biotech Corporation
**+10.17 --Cooperative Research and Development Agreement dated February 25, 1993
between the Registrant and the Centers for Disease Control and Prevention
*10.18 --License Agreement dated March 1, 1989, as amended by a Letter Agreement dated
March 1, 1989 and as amended by a Letter Agreement dated October 22, 1996
between the Registrant and the Trustees of Columbia University
**+10.19 --License Agreement dated June 25, 1996 between the Registrant and The Regents
of the University of California
**+10.20 --KLH Supply Agreement dated July 1, 1996 between the Registrant and PerImmune,
Inc.
</TABLE>
<PAGE>
<TABLE>
<C> <S> <C>
**+10.21 --sCD4 Supply Agreement dated November 3, 1993 between the Registrant and E.I.
DuPont De Nemours and Company
10.22 --Lease dated June 30, 1994 between the Registrant and Keren Limited
Partnership
11.1 --Statement of computation of loss per share for the years ended December 31,
1993, 1994 and 1995
11.2 --Statement of computation of loss per share for the nine months ended
September 30, 1995 and 1996
11.3 --Pro forma statement of computation of loss per share
23.1 --Consent of Coopers & Lybrand L.L.P.
*23.2 --Consent of Dewey Ballantine (contained in Exhibit 5.1)
**24.1 --Power of Attorney (included on page II-5)
27.1 --Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested as to certain portions, which portions are
omitted and filed separately with the Commission.
<PAGE>
CERTIFICATE OF INCORPORATION
OF
PROGENICS PHARMACEUTICALS, INC.
----------
I, THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST: The name of the corporation is
PROGENICS PHARMACEUTICALS, INC.
SECOND: Its registered office is to be located at 229 South State
Street, in the City of Dover, in the County of Kent, in the State of Delaware.
The name of its registered agent at that address is the United States
Corporation Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the corporation is
authorized to issue is forty million (40,000,000) all with $.00l par value.
FIFTH: The name and address of the single incorporator are
Michael D. McManus One Gulf + Western Plaza
New York, NY 10023-7773
<PAGE>
SIXTH: The By-Laws of the corporation may be made, altered, amended,
changed, added to or repealed by the Board of Directors without the assent or
vote of the stockholders. Elections of directors need not be by ballot unless
the By-Laws so provide.
SEVENTH: The personal liability of the directors of the corporation
is hereby eliminated to the fullest extent permitted by paragraph (7) of
subsection (b) of ss. 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
EIGHTH: The corporation shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended from time to
time, indemnify all persons whom it may indemnify pursuant thereto.
NINTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto set my hand and 1st day of
December, 1986.
/s/ Michael D. McManus (L.S.)
-------------------------
Michael D. McManus
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION
OF
PROGENICS PHARMACEUTICALS, INC.
Progenics Pharmaceuticals, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (herein after
referred to as the "Corporation"), does hereby certify:
FIRST: That the Board of Directors of the Corporation at a meeting duly called
and held, adopted a resolution proposing and declaring advisable the following
amendment to the Certificate of Incorporation of the Corporation:
RESOLVED: that the Certificate of Incorporation of the Corporation be
amended by changing the Fourth Article thereof so that, as
amended, said Article shall be and read as follows:
================================================================================
FOURTH:
(A) TOTAL NUMBER OF SHARES OF STOCK. The total number of shares of stock of
all classes that the Corporation shall have authority to issue is sixty
million (60,000,000) shares. The authorized capital stock is divided into
twenty million (20,000,000) Preferred Shares of the par value of $.00l
each and forty million (40,000,000) Common Shares of the par value of
$.00l each.
(B) COMMON SHARES.
(1) The forty million (40,000,000) Common Shares may be issued from time to
time in one or more series, the shares of each series to have such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, as are stated and
expressed herein or in the resolution or resolutions providing for the
issue of such series, adopted by the Board of Directors as hereinafter
provided; provided, however, that no series of Common Shares other than
"Common Stock", as described in paragraph B(3) below, shall be
1
<PAGE>
designated or, if previously designated, no shares of such series shall be
issued if, at the time of such designation or issuance, the designation or
issuance of such shares would violate the rules or regulations of the
United States Securities and Exchange Commission or of the trading market
or markets on which the Corporation's shares are traded.
(2) Authority is hereby expressly granted to the Board of Directors of the
Corporation, subject to the provisions of this Article FOURTH and to the
limitations prescribed by the General Corporation Law of Delaware, to
authorize the issue of one or more series of Common Shares, and with
respect to each such series to fix by resolution or resolutions providing
for the issue of such series the voting powers, full or limited, if any,
of the shares of such series and the designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof. The authority of the
Board of Directors with respect to each series shall include, but not be
limited to, the determination or fixing of the following:
(i) The designation of such series;
(ii) The dividend rate of such series, the conditions and dates
upon which such dividends shall be payable, the relationship
which such dividends shall bear to the dividends payable on
any other class or classes of stock or any other series of any
class of stock of the Corporation, and whether such dividends
shall be cumulative or non-cumulative;
(iii) Whether the shares of such series shall be subject to
redemption by the Corporation and, if made subject to such
redemption, the times, prices and other terms and conditions
of such redemption;
(iv) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(v) Whether or not the shares of such series shall be convertible
into or exchangeable for shares of any other class or classes
of any stock or any other series of any class of stock of the
Corporation, and, if provision is made for conversion or
exchange, the times, prices, rates, adjustments, and
2
<PAGE>
other terms and conditions of such conversion or exchange;
(vi) The extent, if any, to which the holders of shares of such
series shall be entitled to vote with respect to the election
of directors or otherwise;
(vii) The restrictions, if any, on the issue or reissue of any
additional Common Shares;
(viii) The rights of the holders of the shares of such series upon
the voluntary or involuntary liquidation, dissolution or
winding up of the affairs of, or upon the distribution of the
assets of, the Corporation; and
(ix) Any other rights, preferences or limitations of the shares of
such series consistent with the provisions hereof governing
the Common Shares.
(3) Twelve million (12,000,000) Common Shares are designated as a series to be
known "Common Stock". Subject to all of the rights of the Preferred Shares
and the remaining Common Shares provided for by resolution or resolutions
of the Board of Directors pursuant to this Article FOURTH or by the
General Corporation Law of Delaware, the holders of Common Stock shall
have full voting powers on all matters requiring stockholder action, each
share of such Common Stock being entitled to one vote, and have equal
rights of participation in the dividends an4 assets of the Corporation.
The Directors may be resolution or resolutions, adopted pursuant to
paragraph B(2) above, designate additional Common Shares as Common Stock.
The Directors may specify in any such resolution that such designation or
designations shall be irrevocable.
(C) PREFERRED STOCK.
(1) The twenty (20,000,000) Preferred Shares may be issued from time to time
in one or more series, the shares of each series to have such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, as are stated and
expressed herein or in the resolution or resolutions providing for the
issue of such series, adopted by the Board of Directors as hereinafter
provided.
3
<PAGE>
(2) Authority is hereby expressly granted to the Board of Directors of the
Corporation, subject to the provisions of this Article FOURTH and to the
limitations prescribed by the General Corporation Law of Delaware, to
authorize the issue of one or more series of Preferred Shares, and with
respect to each such series to fix by resolution or resolutions providing
for the issue of such series the voting powers, full or limited, if any,
of the shares of such series and the designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof. The authority of the
Board of Directors with respect to each series shall include, but not be
limited to, the determination or fixing of the following:
(i) The designation of such series;
(ii) The dividend rate of such series, the conditions and dates
upon which such dividends shall be payable, the relationship
which such dividends shall bear to the dividends payable on
any other class or classes of stock or any other series of any
class of stock of the Corporation, and whether such dividends
shall be cumulative or non-cumulative;
(iii) Whether the shares of such series shall be subject to
redemption by the Corporation and, if made subject to such
redemption, the times, prices and other terms and conditions
of such redemption;
(iv) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(v) Whether or not the shares of such series shall be convertible
into or exchangeable for shares of any other class or classes
of any stock or any other series of any class of stock of the
Corporation, and, if provision is made for conversion or
exchange, the times, prices, rates, adjustments, and other
terms and conditions of such conversion or exchange;
(vi) The extent, if any, to which the holders of shares of such
series shall be entitled to vote with respect to the election
of directors or otherwise;
4
<PAGE>
(vii) The restrictions, if any, on the issue or reissue of any
additional Preferred Shares;
(viii) The rights of the holders of the shares of such series upon
the voluntary or involuntary liquidation, dissolution or
winding up of the affairs of, or upon the distribution of the
assets of, the Corporation; and
(ix) Any other rights, preferences or limitations of the shares of
such series consistent with the provisions hereof governing
the Preferred Shares."
SECOND: That in lieu of a meeting and vote of stockholders, the holders of a
majority of the issued and outstanding common stock of the Corporation have
given written consent to said amendment in accordance with the provisions of
section 228 of the General Corporation Law of the State of Delaware and written
notice of the adoption of the amendment has been given as provided in said
section 228 to every stockholder entitled to said notice.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of sections 242 and 228 of the General Corporation Law of
the State of Delaware.
5
<PAGE>
IN WITNESS WHEREOF, Progenics Pharmaceuticals, Inc., has caused this
Certificate of Amendment to be duly executed in its corporate name on this 17th
day of July, 1989.
By: /s/ Gerard M. Housey, Ph. D.
----------------------------
Gerard M. Housey, Ph. D.
President
ATTEST: /s/ Terence C. Burnham
----------------------------
Terence C. Burnham
Secretary
STATE OF NEW YORK )
) SS
COUNTY OF WESTCHESTER )
On the 17th day of July, 1989 personally appeared before me Gerard M. Housey and
Terence C. Burnham, who, being by me duly sworn, declared that they are the
President and Secretary, respectively, of Progenics Pharmaceuticals, Inc., a
Delaware corporation, and that the within and foregoing Certificate of Amendment
to the Certificate of Incorporation of Progenics Pharmaceuticals, Inc. was
signed on behalf of said corporation by authority of a resolution of the Board
of Directors and a resolution of the shareholders of Progenics Pharmaceuticals,
Inc., and said persons duly acknowledged to me that said corporation executed
the Certificate of Amendment to the Certificate of Incorporation, and verified
that the matters set forth and the statements therein are true and correct.
/s/ DonnaMarie Neal
- -------------------
NOTARY PUBLIC
My Commission Expires: 3/30/90
DonnaMarie Neal
Notary Public, State of New York
No. 01-468288
Qualified in Putnam County
Commission Expires March 20, 1990
6
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
CERTIFICATE OF DESIGNATION,
PREFERENCES AND RIGHTS
PROVIDING FOR AN ISSUE OF COMMON SHARES DESIGNATED
"CLASS A COMMON STOCK"
The undersigned, Gerard M. Housey, President of Progenics
Pharmaceuticals, Inc. (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware in
accordance with section 151 thereof, does hereby certify:
That pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation of the Corporation, as amended, the Board of
Directors, at a meeting duly called and held adopted a resolution providing for
the issuance of a Series of Common Shares, to be designated "Class A Common
Stock", which resolution is as follows:
RESOLVED: That there is hereby established a series of Common
Shares designated "Class A Common Stock" having the
following preferences, qualifications, privileges,
limitations, restrictions, and other special or
relative rights:
CLASS A COMMON STOCK
1. Designation; Number of Shares.
There is hereby established a series of Common Shares consisting of
Five Million (5,000,000) shares of Common Shares and the designation of such
series shall be "Class A Common Stock" (hereinafter "Class A Common Stock").
2. Rights, Privileges and Preferences of the Class A Common Stock.
For all purposes other than voting the holders of the Class A Common Stock as a
class shall have the same rights, privileges and preferences as the holders of
the Common Stock have as a class. Without limiting the foregoing:
(A) Dividends. The holders of Class A Common Stock shall be
entitled to receive the same per share dividend at the same time and
on the same terms as the holders of Common Stock.
(B) Distributions Upon Liquidation, Dissolution or Winding Up.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, from the assets of
the Corporation available for distribution to the holders of Common
Shares the holders of Class A Common Stock shall be entitled to
receive the same
<PAGE>
-2-
per share amount at the same time and on the same terms as the
holders of Common Stock.
3. Adjustment to Class A Common Stock Upon the Occurrence of Certain
Events.
(A) Stock Dividends. If the number of shares of Common Stock
outstanding is increased by a stock dividend payable in shares of
Common Stock or by a subdivision or split-up of shares of Common
Stock, then contemporaneous with the record date fixed for the
determination of holders of Common Stock entitled to receive such
stock dividend or the effective date of such subdivision or
split-up, as the case may be, a similar Class A Common Stock per
share stock dividend, subdivision or split-up shall be effected with
respect to the Class A Common Stock.
(B) Combination of Stock. If the number of shares of Common
Stock outstanding is decreased by a combination of the outstanding
shares of Common Stock, then contemporaneously with the effective
date of such combination, a similar combination shall be effected
with respect to the Class A Common Stock.
(C) Other Changes in Common Stock. Appropriate adjustments and
distributions shall be made with respect to the Class A Common Stock
as may be required so that at all times the Class A Common Stock and
the Common Stock will have the same rights, privileges and
preferences except for the voting right differences set forth below.
4. Voting Rights.
(A) General. Except as may be otherwise required by law or the
provisions of this Paragraph 4, the holders of Class A Common Stock
shall have no voting rights.
(B) Actions Affecting the Class A Common Stock. Without the
affirmative vote of at least a majority of the shares of Class A
Common Stock at the time outstanding, the Corporation may not effect
any change in the powers, preferences, privileges, rights,
qualifications, limitations or restrictions of the Class A Common
stock; provided, however, and without expanding the foregoing
limited class voting rights, no such separate class vote shall be
required of the Class A Common Stock in order to amend the
certificate of Incorporation of the Corporation to authorize any new
class of stock, whether such class is senior, on a parity with or
junior to the Class A Common Stock in dividends, liquidation, voting
rights or otherwise. Such consents shall either be given in writing
or by vote at a meeting called for that purpose at which the holders
of the Class A Common Stock shall vote as a class.
<PAGE>
-3-
(C) Conversion of the Class A Common Stock. Any provision
hereof the contrary notwithstanding, the Board of Directors of the
Company without obtaining the consent or approval of the holders of
Class A Common Stock may by Board action convert the Class A Common
Stock into shares of Common Stock.
5. Right of Conversion upon Merger or Consolidation. In case of any
consolidation or merger of the Corporation with any other corporation (other
than a consolidation or merger in which the Corporation is the continuing or
surviving corporation and which does not result in any change in the outstanding
Common Stock), or in case of any sale or transfer of all or substantially all
the assets of the Corporation, or in case of a binding share exchange in which
all the outstanding shares of the Common Stock are changed into cash, stock or
other securities or property, then except for maintaining the voting rights
differences between the Common Stock and the Class A Common Stock adequate
provision shall be made by the Company so that the holders of the Class A Common
Stock shall obtain the kind and amount of shares of stock or other securities or
property or cash, as the case may be, which such holder would have been entitled
to receive upon such consolidation, merger, sale or transfer or binding share
exchange if he had held an equivalent number of shares of Common Stock.
IN WITNESS WHEREOF, Progenics Pharmaceuticals, Inc., has caused this
Certificate of Designation, Preferences and Rights to be duly executed in its
corporate name on this 5 day of October, 1989.
By: /s/ Gerard M. Housey
------------------------
Gerard M. Housey, Ph.D.
President
ATTEST: /s/ Terence C. Burnham
------------------------
Terence C. Burnham
Secretary
STATE OF NEW YORK )
) SS.
COUNTY OF WESTCHESTER )
On the 5 day of October, 1989 personally appeared before me Gerard M. Housey and
Terence C. Burnham, who, being by me duly sworn, declared that they are the
President and Secretary, respectively, of Progenics Pharmaceuticals, Inc., a
Delaware corporation, and that the within and foregoing Certificate of
<PAGE>
-4-
Designation, Preferences and Rights was signed on behalf of said corporation by
authority of a resolution of the Board of Directors, and said persons duly
acknowledged to me that said corporation executed the Certificate of
Designation, Preferences and Rights and verified that the matters set forth and
the statements therein are true and correct.
/s/ Mary C. Lanni
- -----------------------
NOTARY PUBLIC
My Commission Expires:
[Notary Stamp]
11/30/89
<PAGE>
PROGENICS PHARMACEUTICALS, INC.
CERTIFICATE OF DESIGNATION,
PREFERENCES AND RIGHTS OF PREFERRED STOCK
PROVIDING FOR AN ISSUE OF PREFERRED STOCK DESIGNATED
"PREFERRED STOCK, SERIES A"
The undersigned, Gerard M. Housey, President of Progenics
Pharmaceuticals, Inc. (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware in
accordance with section 151 thereof, does hereby certify:
That pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation of the Corporation, as amended, the Board of
Directors, at a meeting duly called and held adopted a resolution providing for
the issuance of a Series of Preferred Stock, to be designated "Preferred Stock,
Series A", which resolution is as follows:
RESOLVED, that there is hereby established a series of Preferred
Stock designated "Preferred Stock, Series A" having the
following preferences, qualifications, privileges,
limitations, restrictions, and other special or
relative rights:
PREFERRED STOCK, SERIES A
1. Designation; Number of Shares.
There is hereby established a series of Preferred Stock consisting of Four
Million (4,000,000) shares of Preferred Stock and the designation of such series
shall be "Preferred Stock, Series A" (hereinafter "Series A Preferred Stock").
2. Certain Definitions. Unless the context otherwise requires, the terms
defined in this paragraph 2 shall have, for all purposes of the provisions of
the Series A Preferred Stock, the meanings herein specified:
"Board of Directors" shall mean the Board of Directors of the
Corporation.
"Common Stock Equivalent" shall mean the number of shares of Common
Stock which a holder of a share of Series A Preferred Stock would be entitled to
receive at any given time upon conversion of such share of Series A Preferred
Stock.
1
<PAGE>
"Issue Date" shall mean the date on which shares of Series A
Preferred Stock are first issued.
"Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
"Preferred Stock" shall mean the Series A Preferred Stock and any
other class or series of preferred stock hereafter authorized by the
Corporation.
3. Dividends. As between the series consisting of the Series A Preferred
Stock and the class consisting of Common Shares, the Series A Preferred Stock
shall be entitled to receive from the amounts available for distribution as
dividends to the group consisting of holders of Series A Preferred Stock and
holders of Common Shares, when and as declared by the Board of Directors,
dividends pro rata based on the sum of (a) the number of shares of Common Shares
which are issued and outstanding on the dividend record date and (b) the number
of Common Stock Equivalents on the dividend record date. Each holder of record
of Series A Preferred Stock on a dividend record date shall be entitled to
receive from the amount so available to the series consisting of the Series A
Preferred Stock, dividends pro rata based on the number of Common Stock
Equivalents on such dividend record date. Each series of Common Shares shall be
entitled to receive from the amount so available to the class consisting of
Common Shares, dividends in accordance with the relative preferences which may
from time to time be established among series of the Common Shares; provided
that within any series the holders of record of such series shall receive from
the amount available to such series dividends pro rata to the number of Common
Shares of such series held of record by such holder on the dividend record date.
4. Distributions Upon Liquidation, Dissolution or Winding Up.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, from the assets of the
Corporation available for distribution to the holders of Series A Preferred
Stock and Common Stock (the "Distributable Amount"), the holders of Common Stock
shall receive the Common Stock Capital Percentage and the holders of Series A
Preferred Stock shall receive the Series A Capital Percentage of any
distributions of the Distributable Amount. The Distributable Amount shall be so
allocated until the aggregate amount per share of such distributions (together
with all other distributions and dividends and subject to adjustment for stock
dividends, splits,
2
<PAGE>
combinations, etc.) received by the holders of (a) the Common Stock shall equal
the Common Stock Invested Capital and (b) the Series A Preferred stock shall
equal the Series A Invested Capital. Thereafter the holders of Common Stock and
the holders of Series A Preferred Stock shall receive distributions of the
Distributable Amount pro rata to the number of shares of Common Stock and the
number of Common Stock Equivalents held by such holders on the record date for
such distributions. Distributions made to the class consisting of holders of
Common Stock or to the class consisting of Series A Preferred Stock shall be
made pro rata to members of each class based on the number of shares of Common
Stock or Series A Preferred Stock held of record by each such holder as of the
record date for such distribution.
(b) The term "Common Stock Invested Capital" shall equal
$1,095,000.00.
The term "Series A Invested Capital" shall mean at any time the sum
of the aggregate amount of cash received by the Corporation (x) upon the
original issuance of all then outstanding shares of Series A Preferred Stock
other than shares sold or transferred from treasury stock and (y) in the case of
outstanding shares which were sold or transferred from treasury stock the
aggregate amount received by the Corporation in respect of such transfer.
The term "Common Stock Capital Percentage" shall mean at any time the
fraction (expressed as a percentage) obtained by dividing (a) the Common Stock
Invested Capital by (b) the sum of (x) the Common Stock Invested Capital and (y)
the Series A Invested Capital.
The term "Series A Capital Percentage" shall mean at any time the
fraction (expressed as a percentage) obtained by dividing (a) the Series A
Invested Capital by (b) the sum of (x) the Common Stock Invested Capital and (y)
the Series A Invested Capital.
5. Conversion Right. The Series A Preferred Stock shall be convertible
into Common Stock as follows:
(a) Optional Conversion. Subject to and upon compliance with the
provisions of this paragraph 5, the holder of any shares of Series A Preferred
Stock shall have the right at such holder's option, at any time or from time to
time, to convert any of such shares of Series A Preferred Stock into fully paid
and nonassessable shares of Common Stock at the Conversion Price (as hereinafter
defined) upon the terms hereinafter set forth.
3
<PAGE>
(b) Automatic Conversion. Each outstanding share of Series A
Preferred Stock shall automatically be converted, without any further act of the
Corporation or its shareholders, into fully paid and nonassessable shares of
Common Stock at the Conversion Price then in effect on the earlier to occur of
(a) the closing of a public offering by the Corporation pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offering and sale of any shares of any series of Common Shares by the
Corporation for the account of the Corporation in which the aggregate gross
proceeds (before deduction of any underwriting discount, commission or expense)
received by the Corporation equal or exceed $5,000,000, and (b) the date as of
which there shall have been converted under subparagraph 5(a) a cumulative
aggregate number of shares of Series A Preferred Stock as follows: (x) prior to
August 31, 1989, 600,001 shares of Series A Preferred Stock, (y) from and after
August 31, 1989 and prior to October 1, 1990, a number of shares equal to a
majority of the issued and outstanding shares of Series A Preferred Stock as of
August 31, 1989, and (z) from and after October 1, 1990, a number of shares
equal to a majority of the issued and outstanding shares of Series A Preferred
Stock as of October 1, 1990.
(c) Conversion Price. Each share of Series A Preferred Stock shall be
converted into the number of shares of Common Stock as is determined by dividing
(i) the Original Issue Price of such share of Series A Preferred Stock by (ii)
the Conversion Price in effect on the Conversion Date. The Conversion Price at
which shares of Common Stock shall initially be issuable upon conversion of
shares of Series A Preferred Stock shall be $2.50. The Conversion Price shall be
subject to adjustment as set forth in subparagraph 5(f). No payment or
adjustment shall be made for any dividends on the Common Stock issuable upon
such conversion.
(d) Mechanics of Conversion. Upon the occurrence of the event
specified in subparagraph 5(b), the outstanding shares of Series A Preferred
Stock shall be converted automatically without any further action by the holders
of such shares and whether or not the certificates representing such shares are
surrendered to the Corporation or its transfer agent; provided, however, that
the Corporation shall not be obligated to issue to any such holder certificates
evidencing the shares of Common Stock issuable upon such conversion unless
certificates evidencing such shares of Series A Preferred Stock are delivered to
the Corporation or any transfer agent of the Corporation. The holder of any
shares of Series A Preferred Stock may exercise the conversion right specified
in subparagraph 5(a) as to all or a minimum of 1,000
4
<PAGE>
shares of Series A Preferred Stock held by him by surrendering to the
Corporation or any transfer agent of the Corporation the certificate or
certificates for the shares of Series A Preferred Stock to be converted,
accompanied by written notice stating that the holder elects to convert all or a
specified portion of the shares of Series A Preferred Stock represented thereby.
Conversion shall be deemed to have been effected (i) in the case of an automatic
conversion pursuant to subparagraph 5(b), on the date of the occurrence of the
event specified in subparagraph 5(b) or (ii) in any other case, on the date when
delivery of notice of any election to convert and the certificates for shares is
made (each such date described in clause (i) or clause (ii) above being referred
to herein as the "Conversion Date"). Subject to the provisions of clause (vii)
of subparagraph 5(f), as promptly as practicable thereafter (and after surrender
of the certificate or certificates representing shares of Series A Preferred
Stock to the Corporation or any transfer agent of the Corporation in the case of
conversions pursuant to subparagraph 5(b)) the Corporation shall issue and
deliver to, or upon the written order of, such holder a certificate or
certificates for the number of full shares of Common Stock to which such holder
is entitled and a check or cash with respect to any fractional interest in a
share of Common Stock as provided in subparagraph 5(e). Subject to the
provisions of clause (vii) of subparagraph 5(f), the Person in whose name the
certificate or certificates for Common Stock are to be issued shall be deemed to
have become a holder of record of such Common Stock on the applicable Conversion
Date. Upon conversion of only a portion of the number of shares of Series A
Preferred Stock covered by a certificate representing shares of Series A
Preferred Stock surrendered for conversion (in the case of conversion pursuant
to subparagraph 5(a)), the Corporation shall issue and deliver to, or upon the
written order of, the holder of the certificate so surrendered for conversion,
at the expense of the Corporation, a new certificate covering the number of
shares of Series A Preferred Stock representing the unconverted portion of the
certificate so surrendered.
(e) Fractional Shares. No fractional shares of Common Stock or scrip
shall be issued upon conversion of shares of Series A Preferred Stock. If more
than one share of Series A Preferred Stock shall be surrendered for conversion
at any one time by the same holder, the number of full shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the aggregate
number of shares of Series A Preferred Stock so surrendered. Instead of any
fractional shares of Common Stock which would otherwise be issuable upon
conversion of any shares of Series A Preferred Stock, the Corporation shall pay
a cash
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<PAGE>
adjustment in respect of such fractional interest in an amount equal to that
fractional interest of the then Current Market Price (as hereinafter defined).
(f) Conversion Price Adjustments. The Conversion Price and number of
shares of Common Stock deliverable upon conversion of the shares of Series A
Preferred Stock shall be subject to adjustment from time to time as follows:
(i) Issuances of Capital Stock. If, at any time after the Issue
Date, the Corporation shall issue (or be deemed to have issued pursuant to
subclause (C) below) any capital stock (whether Common Stock, any series
of Common Shares or any other series of Preferred Stock) other than
Excluded Stock (as hereinafter defined) (such stock other than Excluded
Stock being hereinafter referred to as "Capital Stock") for a
consideration per share less than the Conversion Price applicable
immediately prior to such issuance, the Conversion Price in effect
immediately prior to such issuance shall immediately (except as provided
below) be reduced to a price determined by dividing (a) the sum of (i) the
number of shares of Capital Stock outstanding immediately prior to such
issue, multiplied by the Conversion Price in effect immediately prior to
such issue, plus (ii) the consideration, if any, received by the
Corporation upon such issue, by (b) the number of shares of Capital Stock
outstanding immediately after such issue.
For the purpose of any adjustment of the Conversion Price pursuant
to this clause (i) of this subparagraph 5(f), the following provisions
shall be applicable:
(A) Cash. In the case of the issuance of Capital Stock for cash, the
amount of the consideration received by the Corporation shall be deemed to
be the aggregate cash proceeds received by the Corporation for such
Capital Stock before deducting therefrom any reasonable discounts,
commissions, taxes or other expenses allowed, paid or incurred by the
Corporation for any underwriting or otherwise in connection with the
issuance and sale thereof.
(B) Consideration Other than Cash. In the case of the issuance of
Capital Stock (otherwise than upon the conversion of shares of capital
stock or other securities of the Corporation) for a consideration in whole
or in part other than cash, including securities acquired in exchange
therefor (other than securities by their terms so exchangeable), the
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<PAGE>
consideration other than cash shall be deemed to be the fair market value
thereof as determined by the Board of Directors in good faith,
irrespective of any accounting treatment; provided, however, that such
fair market value as determined by the Board of Directors shall not exceed
the aggregate Current Market Price of the shares of Capital Stock being
issued in exchange therefor as of the date the Board of Directors
authorizes the issuance of such shares.
(C) Options and Convertible Securities. In the case of the issuance
at any time after the Issue Date of (i) options, warrants or other rights
to purchase or acquire Capital Stock (,whether or not at the time
exercisable), (ii) securities by their terms convertible into or
exchangeable for Capital Stock (whether or not at the time so convertible
or exercisable) or (iii) options, warrants or rights to purchase such
convertible or exchangeable securities (whether or not at the time
exercisable):
(I) the aggregate maximum number of shares of Capital Stock
deliverable upon exercise of such options, warrants or other rights to
purchase or acquire Capital Stock shall be deemed to have been issued at
the time such options, warrants or rights were issued and for a
consideration equal to the consideration (determined in the manner
provided in subclauses (A) and (B) above), if any, received by the
Corporation upon the issuance of such options, warrants or rights plus the
minimum purchase price provided in such options1 warrants or rights for
the Capital Stock covered thereby (the amount of the purchase price in
each case to be determined in the manner provided in subclauses (A) and
(B) above);
(II) the aggregate maximum number of shares of Capital Stock
deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities, or upon the exercise of options, warrants or
other rights to purchase or acquire such convertible or exchangeable
securities and the subsequent conversion or exchange thereof, shall be
deemed to have been issued at the time such securities were issued or such
options, warrants or rights were issued and for a consideration equal to
the consideration, if any, received by the Corporation for any such
securities and related options, warrants or rights (excluding any cash
received on account of accrued interest or accrued dividends), plus the
minimum additional consideration, if any, to be received by the
Corporation upon the conversion or exchange of such securities and the
exercise of any related options, warrants or rights
7
<PAGE>
(the consideration in each case to be determined in the manner provided in
subclauses (A) and (B) above);
(III) on any change in the number of shares of Capital Stock
deliverable upon exercise of any such options, warrants or rights or
conversion of or exchange for such convertible or exchangeable securities
or any change in the consideration to be received by the Corporation upon
such exercise, conversion or exchange, (other than under or by reason of
provisions designed to protect against dilution), the Conversion Price as
then in effect shall forthwith be readjusted to such Conversion Price as
would have been obtained had an adjustment been made upon the issuance of
such options, warrants or rights, or securities on the basis of such
change; provided, however, there shall be no adjustment pursuant to this
clause (III) to the extent that any of such options, warrants, rights or
securities shall have been exercised, converted or exchanged, as the case
may be, prior to such change;
(IV) on the expiration or cancellation of one or more of such
options, warrants or rights, or the termination of the right to convert or
exchange one or more of such convertible or exchangeable securities, if
the Conversion Price shall have been adjusted upon the issuance thereof
and any of such options, warrants, rights or securities shall not have
been exercised, converted or exchanged, as the case may be, prior to such
expiration or cancellation, the Conversion Price shall forthwith be
readjusted to such Conversion Price as would have been obtained had an
adjustment been made upon only the issuance of such options, warrants,
rights or securities on the basis of the issuance of only the number of
shares of Capital Stock that would actually have been issued upon the
exercise of such options, warrants or rights, or upon the conversion or
exchange of such securities; and
(V) if the Conversion Price has been adjusted upon the issuance of
any such options, warrants, rights or convertible or exchangeable
securities, no further adjustment of the Conversion Price shall be made
for the actual issuance of Capital Stock upon the exercise, conversion or
exchange thereof; provided, however, that, except as provided in clause IV
of subparagraph 5(f)(i)(C), no increase in the Conversion Price shall be
made pursuant to this clause (C).
(ii) Excluded Stock. "Excluded Stock" shall mean: (1) shares of
Common Stock, any other series of Common Shares or
8
<PAGE>
any series of Preferred Stock to be issued pursuant to the 1989 Stock
Option Plan of the Corporation or any other stock options or warrants
granted or sold to employees, consultants, advisors or directors of the
Corporation relating to the provision of services to the Corporation; (2)
the options and warrants described in (1); (3) shares of Common Stock, any
other series of Common Shares or any series of Preferred Stock issued
under provisions of the Certificate of Incorporation as from time to time
in effect or by virtue of agreements designed to protect against dilution;
and (4) shares of Common Stock issued or reserved for issuance by the
Corporation upon conversion of any series of Preferred Shares.
(iii) Stock Dividends. If the number of shares of Common Stock
outstanding at any time after the Issue Date is increased by a stock
dividend payable in shares of Common Stock or by a subdivision or split-up
of shares of Common Stock, then immediately after the record date fixed
for the determination of holders of Common Stock entitled to receive such
stock dividend or the effective date of such subdivision or split-up, as
the case may be, the Conversion Price shall be appropriately reduced so
that the holder of any shares of Series A Preferred Stock thereafter
converted shall be entitled to receive the number of shares of Common
Stock which such holder would have owned immediately following such action
had such shares of Series A Preferred Stock been converted immediately
prior thereto.
(iv) Combination of Stock. If the number of shares of Common Stock
outstanding at any time after the Issue Date is decreased by a combination
of the outstanding shares of Common Stock, then immediately after the
effective date of such combination, the Conversion Price shall be
appropriately increased so that the holder of any shares of Series A
Preferred Stock thereafter converted shall be entitled to receive the
number of shares of Common Stock which such holder would have owned
immediately following such action had such shares of Series A Preferred
Stock been converted immediately prior thereto.
(v) Reclassification. In the event of a reclassification of the
Common Stock, each share of Series A Preferred Stock shall, after such
reclassification, be convertible into the number and type of shares of
capital stock or other securities to which the Common Stock issuable (at
the time of such reclassification) upon conversion of such shares of
Series A Preferred Stock would have been entitled upon such
9
<PAGE>
reclassification; and, in such event, if necessary, the provisions set
forth herein with respect to the rights and interests thereafter of the
holders of Series A Preferred Stock shall be appropriately adjusted so as
to be applicable, as nearly as may reasonably be, to any shares of stock
or other securities thereafter deliverable upon the conversion of Series A
Preferred Stock. The subdivision or combination of Common Stock issuable
upon conversion of Series A Preferred Stock at any time outstanding into a
greater or lesser number of shares of Common Stock (whether with or
without par value) shall not be deemed to be a reclassification of the
Common Stock of the Corporation for the purposes of this clause (v).
(vi) Rounding of Calculations; Minimum Adjustment. All calculations
under this subparagraph (f) shall be made to the nearest cent or to the
nearest one one-hundredth (1/100th) of a share, as the case may be. Any
provision of this paragraph 5 to the contrary notwithstanding, no
adjustment to the Conversion Price shall be made if the amount of such
adjustment would be less than $.01, but any such amount shall be carried
forward and an adjustment with respect thereto shall be made at the time
of and together with any subsequent adjustment which, together with such
amount and any other amount or amounts so carried forward, shall aggregate
$.01 or more.
(vii) Timing of Issuance of Additional Common Stock upon Certain
Adjustments. In any case in which the provisions of this subparagraph (f)
shall require that an adjustment shall become effective immediately after
a record date for an event, the Corporation may defer until the occurrence
of such event (1) issuing to the holder of any share of Series A Preferred
Stock converted after such record date and before the occurrence of such
event the additional shares of Common Stock issuable upon such conversion
by reason of the adjustment required by such event over and above the
shares of Common Stock issuable upon such conversion before giving effect
to such adjustment and (2) paying to such holder any amount of cash in
lieu of a fractional share of Common Stock pursuant to subparagraph (e) of
this paragraph 5; provided, however, that the Corporation upon request
shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares, and such
cash, upon the occurrence of the event requiring such adjustment.
(viii) Prohibition of Action Resulting in Minimum
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<PAGE>
Conversion Price. The Corporation shall not take any action of the kind
covered by this subparagraph 5(f) which would cause the Conversion Price
to fall below the greater of $.01 and the par value of the Common Stock.
(g) Current Market Price. The Current Market Price at any date shall
mean the price per share of Capital Stock on such date determined by the Board
of Directors as provided below. The Current Market Price shall be the average of
the daily closing price per share of such Capital Stock for thirty (30)
consecutive business days ending no more than fifteen (15) business days before
the day in question (as adjusted for any stock dividend, split, combination or
reclassification that took effect during such 30-day period). The closing price
for each day shall be the last reported sales price regular way or, in the case
no such reported sales take place on such day, the average of the last reported
bid and asked prices regular way, in either case, on the principal national
securities exchange on which such Capital Stock is listed or admitted to
trading, unless such principal national securities exchange is a regional
securities exchange and such Capital Stock is also quoted on the National
Association of Securities Dealers Automated Quotation System (the "NASDAQ
System"), or if not listed or admitted to trading on a national securities
exchange or if such principal securities exchange is a regional securities
exchange and such Capital Stock is also quoted on the NASDAQ System, the average
of the highest bid and the lowest asked prices quoted on the NASDAQ system or,
if not so quoted, as reported by the National Quotation Bureau, Inc.; provided,
however, that if such Capital Stock is not traded in such manner that any of the
quotations referred to above is available for the period required hereunder, the
Current Market Price per share of such Capital Stock shall be deemed to be the
fair market value as determined by the Board of Directors in good faith,
irrespective of any accounting treatment.
(h) Statement Regarding Adjustments. Whenever the Conversion Price
shall be adjusted as provided in subparagraph 5(f), the Corporation shall
forthwith file, at the office of any transfer agent for the Series A Preferred
Stock and at the principal office of the Corporation, a statement showing in
detail the facts requiring such adjustment and the Conversion Price that shall
be in effect after such adjustment, and the Corporation shall also cause a copy
of such statement to be sent by mail, first-class postage prepaid, to each
holder of Series A Preferred Stock at its address appearing on the Corporation's
records. Where appropriate, such copy may be given in advance and may be
included as part of a notice required to be mailed under the provisions of
subparagraph 5(i).
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(i) Notice to Holders. In the event the Corporation shall propose to
take any action of the type described in clause (i) (but only if the action of
the type described in clause (i) would result in an adjustment in the Conversion
Price), (iii), (iv) or (v) of subparagraph 5(f), the Corporation shall give
notice to each holder of shares of Series A Preferred Stock, in the manner set
forth in subparagraph 5(h), which notice shall specify the record date, if any,
with respect to any such action and the approximate date on which such action is
to take place. Such action shall also set forth such facts with respect thereto
as shall be reasonably necessary to indicate the effect of such action (to the
extent such effect may be known at the date of such notice) on the Conversion
Price and the number, kind or class of shares or other securities or property
which shall be deliverable or purchasable upon the occurrence of such action or
deliverable upon conversion of shares of Series A Preferred Stock. In the case
of any such action which would require the fixing of a record date, such notice
shall be given at least twenty (20) calendar days prior to the date so fixed,
and in the case of all other action, such notice shall be given at least thirty
(30) calendar days prior to the taking of such proposed action. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
any such action.
(j) Treasury Stock. For the purposes of this paragraph 5, the sale or
other disposition (other than sales or dispositions to employees, consultants,
advisors or directors of the Corporation in connection with the provision of
services to the Corporation) of any capital stock of the Corporation theretofore
held in its treasury shall be deemed to be an issuance thereof.
(k) Costs. The Corporation shall pay all documentary, stamp, transfer
or other transactional taxes attributable to the issuance or delivery of shares
of Common Stock of the Corporation upon conversion of any shares of Series A
Preferred Stock; provided, however, that the Corporation shall not be required
to pay any taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares in a name other than
that of the holder of the shares of Series A Preferred, Stock in respect of
which such shares are being issued.
(l) Reservation of Shares. The Corporation shall reserve at all times
so long as any shares of Series A Preferred Stock remain outstanding out of its
treasury stock or its authorized but unissued shares of Common Stock, or both,
solely for the purpose
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<PAGE>
of effecting the conversion of the shares of Series A Preferred Stock,
sufficient shares of Common Stock to provide for the conversion of all
outstanding shares of Series A Preferred Stock.
(m) Approvals. If any shares of Common Stock to be reserved for the
purpose of conversion of shares of Series A Preferred Stock require registration
with or approval of any governmental authority under any Federal or state law
before such shares may be validly issued or delivered upon conversion, then the
Corporation will in good faith and as expeditiously as possible endeavor to
secure such registration or approval, as the case may be. If, and so long as,
any Common Stock into which the shares of Series1 A Preferred Stock are then
convertible is listed in any national securities exchange, the Corporation will,
if permitted by the rules of such exchange, list and keep listed on such
exchange, upon official notice of issuance, all shares of such Common Stock
issuable upon conversion.
(n) Valid Issuance. All shares of Common Stock which may be issued
upon conversion of the shares of Series A Preferred Stock will upon issuance by
the Corporation be duly and validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issuance thereof and
the Corporation shall take no action which will cause a contrary result
(including, without limitation, any action which would cause the Conversion
Price to be less than the par value, if any, of the Common Stock).
6. Voting Rights.
(a) General. Except as may be otherwise required by law or by the
provisions of this paragraph 6, the holders of Series A Preferred Stock shall
vote together with the holders of Common Stock as a single class on every matter
coming before any meeting of the shareholders or otherwise to be acted upon by
the shareholders. At every meeting of the shareholders of the Corporation, every
holder of Series A Preferred Stock shall be entitled, for each such share
standing in its name on the transfer books of the Corporation, to a number of
votes equal to the number of votes which could be cast by such holder if it held
the Common Stock Equivalent of such share of Series A Preferred Stock on the
record date for such vote.
(b) Changes to Series A Preferred Stock. Without the affirmative vote
of at least a majority of the shares of Series A Preferred Stock at the time
outstanding, the Corporation may not effect any change in the powers,
preferences, privileges, rights, qualifications, limitations or restrictions of
the Series A Preferred Stock; provided, however, and without expanding the
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<PAGE>
foregoing limited class voting rights, except as provided in subparagraph (c)
below, no such separate class vote shall be required of the Series A Preferred
Stock in order to amend the Certificate of Incorporation of the Corporation to
authorize any new class of stock, whether such class is senior, on a parity with
or junior to the Series A Preferred Stock in dividends, liquidation, voting
rights or otherwise. Such consents shall either be given in writing or by vote
at a meeting called for that purpose at which the holders of the Series A
Preferred Stock shall vote as a class.
(c) Special Series A Voting Rights. A separate affirmative vote of at
least a majority of the shares of Series A Preferred stock outstanding shall be
required for any additional series of Common Shares or Preferred Stock to be
issued if:
(i) Such series has senior rights to the Series A Preferred Stock
upon any liquidation, dissolution or winding up of the Corporation, or
(ii) (A) Such series has equivalent rights to the Series A Preferred
Stock upon any liquidation, dissolution or winding up of the Corporation,
and
(B) The aggregate amount received by the Corporation in respect
of the issuance or sale of shares of Capital Stock having equivalent
rights to the Series A Preferred Stock upon any liquidation, dissolution
or winding up of the Corporation from and after the Issue Date (exclusive
of capital invested upon issuance of not in excess of 2,400,000 shares the
Series A Preferred Stock) through and inclusive of the additional series
of Common Shares or Preferred Stock proposed to be issued exceeds
$10,000,000.
(d) Special Redemption Rights. If in any case of a separate class
vote of the Series A Preferred Stock is required under clause (i) or (ii) of
subparagraph (c) above a majority of the outstanding shares of the Series A
Preferred Stock are not voted in favor of such issuance of stock, but the
holders of majority of the then issued and outstanding Common Stock voting as a
separate class vote in favor of such issuance then the Corporation shall have
the right to redeem all but not less than all of the outstanding shares of
Series A Preferred Stock at the following per share price (subject to adjustment
for stock dividends, splits, combinations, etc.) (the "Redemption Price"):
If Redemption Date occurs:
on or after and prior to Redemption Price
-------------------------- ------------ ----------------
July 1, 1989 June 30, 1990 $2.75
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July 1, 1990 June 30, 1991 $2.97
July 1, 1991 June 30, 1992 $3.21
July 1, 1992 June 30, 1993 $3.46
after July 1, 1993 ---- $3.74
The Corporation's redemption right may be exercised at any time
within 12 months after the record date for the special class vote provided in
clause (i) or (ii) of subparagraph (c) by giving written notice to the holder of
record of each share of Series A Preferred Stock at least 30 days prior to the
date on which the redemption is to occur ("Redemption Date"). On the Redemption
Date the Corporation shall tender the Redemption Price to each record holder of
Series A Preferred Stock against delivery of stock certificates for the Series A
Preferred Stock being redeemed; provided that until the close of business on the
day immediately preceding the Redemption Date each holder of Series A Preferred
Stock shall be entitled to convert such stock to Common Stock pursuant to the
terms hereof.
Notwithstanding the provision of subparagraph (c) in order to permit
the Corporation to issue securities to provide in whole or in part funds to
redeem the Series A Preferred Stock as contemplated hereby, the Certificate of
Incorporation may be amended and/or additional series of Common Shares or
Preferred Stock may be issued solely upon the requisite of other series and
classes of Common Shares and Preferred Stock (other than the Series A Preferred
Stock) provided the Corporation uses all or a portion of the proceeds to redeem
all outstanding Series A Preferred Stock.
7. Right of Conversion upon Merger or Consolidation. In case of any
consolidation or merger of the Corporation with any other corporation (other
than a consolidation or merger in which the Corporation is the continuing or
surviving corporation and which does not result in any change in the outstanding
Common Stock), or in case of any sale or transfer of all or substantially all
the assets of the Corporation, or in case of a binding share exchange in which
all the outstanding shares of the Common Stock are changed into cash, stock or
other securities or property, the holder of each share of the Series A Preferred
Stock shall at any time after such consolidation, merger, sale or transfer or
binding share exchange have the right to convert such share of Series A
Preferred Stock into the kind and amount of shares of stock or other securities
or property or cash, as the case may be, which such holder would have been
entitled to receive upon such consolidation, merger, sale or transfer or binding
share exchange if he had held the Common Stock issuable upon the conversion of
such share of Series A Preferred Stock immediately prior to such
15
<PAGE>
consolidation, merger, sale or transfer or binding share exchange.
8. Retirement of Shares. Shares of Series A Preferred Stock which have
been issued and have been redeemed, converted, repurchased or reacquired in any
manner by the Corporation shall be canceled and shall not be reissued.
9. Certain Rights of Participation in Stock Issuances. In the event that
the Corporation shall issue any equity securities or securities exercisable for
or convertible into equity securities of the Corporation (hereinafter "Equity
Securities"), each holder of shares of Series A Preferred Stock shall have the
right to purchase such amount of such Equity Securities which will enable such
holder to retain the percentage ownership interest (in terms of Common Stock or
Common Stock Equivalents) in the Corporation which such holder had immediately
prior to such issuance of Equity Securities. No later than twenty (20) days
after the issuance of any Equity Securities the Corporation shall give each
record holder of Series A Preferred Stock written notice (the "Notice") of the
issuance or proposed issuance of such Equity Securities and shall offer to sell
to each such holder the amount of Equity Securities described in the preceding
sentence on the same terms and conditions which such Equity Securities were or
are proposed to be issued. Each such holder shall have a period of twenty (20)
days after the date of the Notice to purchase such amount of Equity Securities
on such terms and conditions. The rights of participation provided in this
paragraph shall not apply to Equity Securities issued under the provisions of
this paragraph, upon conversion or exercise of any Equity Securities, as a stock
dividend or upon any subdivision of any Equity Securities, in consideration in
whole or in part for the acquisition (whether by merger or otherwise) by the
Corporation or any of its subsidiaries of all or substantially all of the stock
or assets of any other entity, in connection with any transaction (e.g. a joint
venture, technology licensing, distribution or other arrangement) With respect
to which the Board of Directors has made a good faith determination that the
primary purpose of such transaction is the advancement of the business interests
of the Corporation as opposed to the raising of funds, pursuant to a firm
commitment underwritten public offering, pursuant to the grant of options or
warrants to and the exercise of the same to purchase Equity Securities by
employees, consultants, advisors or directors of the Corporation relating to the
providing of services to the Corporation or the issuance of treasury shares
acquired from employees, consultants, advisors or directors, upon the exercise
of any right which was not itself in violation of the terms of this paragraph,
or the issuance of securities pursuant to anti-
16
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dilution, pre-emptive, participation or similar rights granted herein or by
contract. The rights of the holders of Series A Preferred Stock under this
paragraph may be waived by a vote or consent of persons holding a majority of
the Common Stock Equivalents at the time represented by the issued and
outstanding shares of Series A Preferred Stock.
17
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * * *
Progenics Pharmaceuticals, Inc., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY
FIRST: That at a meeting of the Board of Directors of the Corporation, a
resolution was duly adopted proposing and declaring advisable the following
amendment to the Certificate of Incorporation of the Corporation:
RESOLVED: That, in the judgment of the Board of Directors of this
Corporation, it is deemed advisable to amend the Certificate of
Incorporation of the Corporation, as amended, by changing the
Article thereof numbered "Fourth" so that, as amended, said
Article shall be and read as follows:
"FOURTH:
(A) TOTAL NUMBER OF SHARES OF STOCK. The total number of shares of stock of
all classes that the Corporation shall have authority to issue is sixty
million (60,000,000) shares. The authorized capital stock is divided into
twenty million (20,000,000) Preferred Shares of the par value of $.00l each
and forty million (40,000,000) Common Shares of the par value of $.00l
each.
(B) COMMON SHARES.
(1) The forty million (40,000,000) Common Shares may be issued from time to
time in one or more series, the shares of each series to have such voting
powers, full
<PAGE>
-2-
or limited, or no voting powers, and such designations, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as are stated and
expressed herein or in the resolution or resolutions providing for the
issue of such series, adopted by the Board of Directors as hereinafter
provided; provided, however, that no series of Common Shares other than
"Common Stock", as described in paragraph B(3) below, shall be designated
or, if previously designated, no shares of such series shall be issued if,
at the time of such designation or issuance, the designation or issuance of
such shares would violate the rules or regulations of the United States
Securities and Exchange Commission or of the trading market or markets on
which the Corporation's shares are traded.
(2) Authority is hereby expressly granted to the Board of Directors of the
Corporation, subject to the provisions of this Article FOURTH and to the
limitations prescribed by the General Corporation Law of Delaware, to
authorize the issue of one or more series of Common Shares, and with
respect to each such series to fix by resolution or resolutions providing
for the issue of such series the voting powers, full or limited, if any, of
the shares of such series and the designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof. The authority of the Board of
Directors with respect to each series shall include, but not be limited to,
the determination or fixing of the following:
(a) The designation of such series;
(b) The dividend rate of such series, the conditions and dates upon which
such dividends shall be payable, the relationship which such dividends
shall bear to the dividends payable on any other class or classes of
stock or any other series of any class of stock of the Corporation,
and whether such dividends shall be cumulative or non-cumulative;
(c) Whether the shares of such series shall be subject to redemption by
the Corporation and, if made subject to such redemption, the times,
prices and other terms and conditions of such redemption;
(d) The terms and amount of any sinking fund provided for the purchase or
redemption of the shares of such series;
(e) Whether or not the shares of such series shall be convertible into or
exchangeable for shares of any
<PAGE>
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other class or classes of any stock or any other series of any class
of stock of the Corporation, and, if provision is made for conversion
or exchange, the times, prices, rates, adjustments, and other terms
and conditions of such conversion or exchange;
(f) The extent, if any, to which the holders of shares of such series
shall be entitled to vote with respect to the election of directors or
otherwise;
(g) The restrictions, if any, on the issue or reissue of any additional
Common Shares;
(h) The rights of the holders of the shares of such series upon the
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of, or upon the distribution of the assets of, the
Corporation; and
(i) Any other rights, preferences or limitations of the shares of such
series consistent with the provisions hereof governing the Common
Shares.
(3) Twelve million (12,000,000) Common Shares are designated as a series to be
known "Common Stock". Subject to all of the rights of the Preferred Shares
and the remaining Common Shares provided for by resolution or resolutions
of the Board of Directors pursuant to this Article FOURTH or by the General
Corporation Law of Delaware, the holders of Common Stock shall have full
voting powers on all matters requiring stockholder action, each share of
such Common Stock being entitled to one vote, and have equal rights of
participation in the dividends and assets of the Corporation. The
Directors may be resolution or resolutions, adopted pursuant to paragraph
B(2) above, designate additional Common Shares as Common Stock. The
Directors may specify in any such resolution that such designation or
designations shall be irrevocable.
(C) PREFERRED SHARES
(1) Authorized Preferred Shares.
The Twenty Million (20,000,000) Preferred Shares shall consist of Four
Million (4,000,000) shares of Series A Preferred Stock, Two Million Five
Hundred Thousand (2,500,000) shares of Series B Preferred Stock and
Thirteen Million Five Hundred Thousand (13,500,000) shares which may be
issued in one or more series as described in subparagraph 10 hereof.
<PAGE>
-4-
(2) Certain Definitions.
Unless the context otherwise requires, the terms defined in this
paragraph shall have, for all purposes hereof, the following meanings:
"Applicable Series Issue Date" shall mean for any series of Preferred
Shares the date on which shares of such series are first issued.
"Board of Directors" shall mean the Board of Directors of the
Corporation.
"Common Stock Equivalent" shall mean at any time the number of shares
of Common Stock (including fractions of a share) into which a share of
Preferred Stock could be converted at such time.
"Junior Stock" shall mean any series of Common Shares, and any other
class or series of capital stock of the Corporation ranking junior to the
Preferred Stock either as to rights on Liquidation or as to dividends or
distributions.
"Liquidation" shall mean any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary.
"Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
"Preferred Stock" shall mean the Series A Preferred Stock, the Series
B Preferred Stock and any other series of Preferred Shares which are
specifically designated as Preferred Stock with the Series A Preferred
Stock and the Series B Preferred Stock.
"Series A Preferred Stock" shall mean the Series A Preferred Stock,
par value $.00l per share, of the Corporation.
"Series B Preferred Stock" shall mean the Series B Preferred Stock,
par value $.00l per share, of the Corporation.
(3) Dividends.
No dividends may be declared on or paid to any series of Common Shares,
Junior Stock or Preferred Stock except as part of a declaration or payment
of dividends to a group consisting of the Preferred Stock and one or more
series Common Shares or Junior Stock. As between the class
<PAGE>
-5-
consisting of the Preferred Stock and the class consisting of one or more
series of Common Shares or Junior Stock, dividends shall be allocated
between such classes pro rata based on the sum of (a) the number of shares
of such series of Common Shares or Junior Stock which are issued and
outstanding on the dividend record date and (b) the number of Common Stock
Equivalents with respect to the Preferred Stock on the dividend record
date. No dividends shall be paid to the Preferred Stock except as part of
a dividend paid to the group consisting of Series A Preferred Stock and
Series B Preferred Stock and holders of record of the Series A Preferred
Stock and the Series B Preferred Stock shall receive from the amount
available to such group dividends pro rata to the number of Common Stock
Equivalents with respect to the Series A Preferred Stock and the Series B
Preferred Stock held of record by such holder on the dividend record date.
Each series of Common Shares or Junior Stock as to which a dividend has
been declared shall be entitled to receive from the amount so available to
the class consisting of such series of Common Shares and Junior Stock,
dividends in accordance with the relative preferences which may from time
to time be established among series of the Common Shares and Junior Stock;
provided that within any series of Common Shares holders of record of such
series shall receive from the amount available to such series dividends pro
rata to the number of Common Shares of such series held of record by such
holder on the dividend record date.
(4) Distributions Upon Liquidation, Dissolution or Winding Up.
In the event of any Liquidation, no distributions may be made with respect
to any series of Common Shares, Junior Stock or Preferred Stock except as a
part of a distribution to a group consisting of the Preferred Stock and one
or more series of Common Shares or Junior Stock. From the assets of the
Corporation available for distribution to the holders of Preferred Stock
and one or more series of Common Shares or Junior Stock (the "Distributable
Amount"), the holders of Common Shares or Junior Stock shall receive the
Junior Stock Capital Percentage, the holder of Series A Preferred Stock
shall receive the Series A Capital Percentage and the holders of Series B
Preferred Stock shall receive the Series B Capital Percentage of any
distributions of the Distributable Amount. The Distributable Amount shall
be so allocated until the aggregate amount per share of such distributions
(together with all other distributions and dividends and subject to
adjustment for stock dividends, splits, combinations, etc.) received by the
holders of (i) the Common Stock and Junior Stock shall equal the Junior
Stock Invested Capital, (ii) the Series A Preferred Stock shall equal the
Series A Invested Capital and (iii) the Series B Preferred Stock shall
equal the Series B Invested Capital. Thereafter the holders of such series
of Common Shares and Junior Stock and the holders of Preferred Stock shall
receive
<PAGE>
-6-
distributions of the Distributable Amount pro rata to the number of shares
of Common Stock, Junior Stock and the number of Common Stock Equivalents
with respect to the Preferred Stock held by such holders on the record date
for such distributions. Distributions made to the class consisting of
holders of such series of Common Shares shall be made pro rata to the
number of shares of such series of Common Shares held of record by each
such holder as of the record date for such distribution. Distributions
made to the class consisting of holders of such Junior Stock shall be made
pro rata to the number of shares of such Junior Stock held of record by
each such holder as of the record date for such distribution.
Distributions made to the class consisting of holders of Preferred Stock
shall be made pro rata to the Common Stock Equivalents with respect to the
shares of Preferred Stock held of record by each such holder as of the
record date for such distribution.
The term "Junior Stock Invested Capital" shall equal $1,095,000.00.
The term "Series A Invested Capital" shall mean at any time the sum of
the aggregate amount of cash received by the Corporation (x) upon the
original issuance of all then outstanding shares of Series A Preferred
Stock other than shares sold or transferred from treasury stock and (y) in
the case of outstanding shares which were sold or transferred from treasury
stock the aggregate amount received by the Corporation in respect of such
transfer.
The term "Series B Invested Capital" shall mean at any time the sum of
the aggregate amount of cash received by the Corporation (x) upon the
original issuance of all then outstanding shares of Series B Preferred
Stock other than shares sold or transferred from treasury stock and (y) in
the case of outstanding shares which were sold or transferred from treasury
stock the aggregate amount received by the Corporation in respect of such
transfer.
The term "Total Invested Capital" shall mean at any time the sum of
(a) the Junior Stock Invested Capital, (b) the Series A Invested Capital
and (c) the Series B Invested Capital.
The term "Junior Stock Capital Percentage" shall mean at any time the
fraction (expressed as a percentage) obtained by dividing (a) the Junior
Stock Invested Capital by (b) the Total Invested Capital.
The term "Series A Capital Percentage" shall mean at any time the
fraction (expressed as a percentage) obtained by dividing (a) the Series A
Invested Capital by (b) the Total Invested Capital.
<PAGE>
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The term "Series B Capital Percentage" shall mean at any time the
fraction (expressed as a percentage) obtained by dividing (a) the Series B
Invested Capital by (b) the Total Invested Capital.
(5) Conversion Rights.
The holders of Preferred Stock shall have the following conversion rights:
(a) Optional Conversion. Subject to and upon compliance with the
provisions of this paragraph 5, the holder of any share or shares of
Preferred Stock shall have the right at such holder's option, at any time
or from time to time, to convert any of such shares of preferred Stock
(except that upon any Liquidation of the Corporation the right of
conversion shall terminate at the close of business on the business day
fixed for payment of the amount distributable on the preferred Stock) into
such number of fully paid and nonassessable shares of Common Stock as is
obtained by (a) multiplying the number of shares of Preferred Stock to be
so converted by the Original Series Issue Price for such series of
Preferred Stock being converted and (b) dividing the result by the
Applicable Series Conversion Price for such series of Preferred Stock as
defined in Section 5(c). The term "Original Series Issue Price" shall mean
(a) in the case of the Series A Preferred Stock, $2.50 per share and (b) in
the case of the Series B Preferred Stock, $4.00 per share.
(b) Automatic Conversion. Each outstanding share of a series of
Preferred Stock shall automatically be converted, without any further act
of the Corporation or its shareholders, into fully paid and nonassessable
shares of Common Stock at the Applicable Series Conversion Price then in
effect on the earlier to occur of (a) the closing of a public offering by
the Corporation pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offering and sale of any
shares of any series of Common Shares by the Corporation for the account of
the Corporation in which (i) the aggregate gross proceeds (before deduction
of any underwriting discount, commission or expense) received by the
Corporation equal or exceed $5,000,000 and (ii) the price per share of such
Common Shares equals or exceeds 200% of the Applicable Series Conversion
Price in effect immediately prior to the closing of the sale of such shares
by the Corporation, and (b)(i) in the case of the Series A Preferred Stock
the date as of which there shall have been converted under subparagraph
5(a) a cumulative of 1,145,001 shares of Series A Preferred Stock and (ii)
in the case of the Series B Preferred Stock the date as of which there
shall have been converted under subparagraph 5(a) a cumulative aggregate
number of shares of Series B Preferred
<PAGE>
-8-
Stock as follows: (x) prior to January 31, 1994, a number of shares equal
to a majority of the issued and outstanding shares of Series B Preferred
Stock as of February 28, 1993, and (y) from and after February 1, 1994 , a
number of shares equal to a majority of the issued and outstanding shares
of Series B Preferred Stock as of February 1, 1994.
(c) Applicable Series Conversion Price. The term "Applicable Series
Conversion Price" shall mean (a) in the case of the Series A Preferred
Stock, $2.50 per share and (b) in the case of the Series B Preferred Stock,
$4.00 per share, in each case as such price may from time to time be
adjusted pursuant to the provisions subparagraph 5(f) and as such price as
adjusted is in effect at the date any shares or shares of Preferred Stock
are surrendered for conversion. No payment or adjustment shall be made for
any dividends on the Common Stock issuable upon such conversion.
(d) Mechanics of Conversion. Upon the occurrence of the event
specified in subparagraph 5(b), the outstanding shares of the series of
Preferred Stock involved shall be converted automatically without any
further action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the Corporation or
its transfer agent; provided, however, that the Corporation shall not be
obligated to issue to any such holder certificates evidencing the shares of
Common Stock issuable upon such conversion unless certificates evidencing
such shares of Preferred Stock are delivered to the Corporation or any
transfer agent of the Corporation. The holder of any shares of Preferred
Stock may exercise the conversion right specified in subparagraph 5(a) as
to all or a minimum of 1,000 shares of a series of Preferred Stock held by
such holder by surrendering to the Corporation or any transfer agent of the
Corporation the certificate or certificates for the shares of Preferred
Stock to be converted, accompanied by written notice stating that the
holder elects to convert all or a specified portion of the shares of series
of Preferred Stock represented thereby. Conversion shall be deemed to have
been effected (i) in the case of an automatic conversion pursuant to
subparagraph 5(b), on the date of the occurrence of the event specified in
subparagraph 5(b) or (ii) in any other case, on the date when delivery of
notice of any election to convert and the certificates for shares is made
(each such date described in clause (i) or clause (ii) above being referred
to herein as the "Conversion Date"). Subject to the provisions of clause
(vii) of subparagraph 5(f), as promptly as practicable thereafter (and
after surrender of the certificate or certificates representing shares of
Preferred Stock to the Corporation or any transfer agent of the Corporation
in the case of conversions pursuant to subparagraph 5(b)) the Corporation
shall issue and deliver to, or upon the written order of, such holder a
certificate or certificates for the
<PAGE>
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number of full shares of Common Stock to which such holder is entitled and
a check or cash with respect to any fractional interest in a share of
Common Stock as provided in subparagraph 5(e). Subject to the provisions
of clause (vii) of subparagraph 5(f), the Person in whose name the
certificate or certificates for Common Stock are to be issued shall be
deemed to have become a holder of record of such Common Stock on the
applicable Conversion Date. Upon conversion of only a portion of the
number of shares of Preferred Stock covered by a certificate representing
shares of Preferred Stock surrendered for conversion (in the case of
conversion pursuant to subparagraph 5(a)), the Corporation shall issue and
deliver to, or upon the written order of, the holder of the certificate so
surrendered for conversion, at the expense of the Corporation, a new
certificate covering the number of shares of Preferred Stock representing
the unconverted portion of the certificate so surrendered.
(e) Fractional Shares. No fractional shares of Common Stock or scrip
shall be issued upon conversion of shares of Preferred Stock. If more than
one share of Preferred Stock shall be surrendered for conversion at any one
time by the same holder, the number of full shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate
number of shares of Preferred Stock so surrendered. Instead of any
fractional shares of Common Stock which would otherwise be issuable upon
conversion of any shares of Preferred Stock, the Corporation shall pay a
cash adjustment in respect of such fractional interest in an amount equal
to that fractional interest of the then Current Market Price (as
hereinafter defined).
(f) Conversion Price Adjustments. The Applicable Series Conversion
Price and number of shares of Common Stock deliverable upon conversion of
the shares of a series of Preferred Stock shall be subject to adjustment
from time to time as follows:
(i) Issuances of Capital Stock. If, at any time after the
Applicable Series Issue Date, the Corporation shall issue (or be
deemed to have issued pursuant to subclause (C) below) any capital
stock (whether Common Stock, any series of Common Shares or any other
series of Preferred Stock) other than Excluded Stock (as hereinafter
defined) (such stock other than Excluded Stock being hereinafter
referred to as "Capital Stock") for a consideration per share less
than the Applicable Series Conversion Price applicable immediately
prior to such issuance, the Applicable Series Conversion Price with
respect to such series of Preferred Stock in effect immediately prior
to such issuance shall immediately (except as provided below) be
reduced to a price determined by dividing (a) the sum of (i) the
number of shares of Capital Stock outstanding immediately prior to
<PAGE>
-10-
such issue, multiplied by the Applicable Series Conversion Price in
effect immediately prior to such issue, plus (ii) the consideration,
if any, received by the Corporation upon such issue, by (b) the number
of shares of Capital Stock outstanding immediately after such issue.
For the purpose of any adjustment of the Applicable Series
Conversion Price pursuant to this clause (i) of this subparagraph
5(f), the following provisions shall be applicable:
(ii) Cash. In the case of the issuance of Capital Stock for
cash, the amount of the consideration received by the Corporation
shall be deemed to be the aggregate cash proceeds received by the
Corporation for such Capital Stock before deducting therefrom any
discounts, commissions, taxes or other expenses allowed, paid or
incurred by the Corporation for any underwriting or otherwise in
connection with the issuance and sale thereof.
(iii) Consideration Other than Cash. In the case of the
issuance of Capital Stock (otherwise than upon the conversion of
shares of capital stock or other securities of the Corporation) for a
consideration in whole or in part other than cash, including
securities acquired in exchange therefor (other than securities by
their terms so exchangeable), the consideration other than cash shall
be deemed to be the fair market value thereof as determined by the
Board of Directors in good faith, irrespective of any accounting
treatment; provided, however, that such fair market value as
determined by the Board of Directors shall not exceed the aggregate
Current Market Price of the shares of Capital Stock being issued in
exchange therefor as of the date the Board of Directors authorizes the
issuance of such shares.
(iv) Options and Convertible Securities. In the case of the
issuance at any time after the Applicable Series Issue Date of (i)
options, warrants or other rights to purchase or acquire Capital Stock
(whether or not at the time exercisable), (ii) securities by their
terms convertible into or exchangeable for Capital Stock (whether or
not at the time so convertible or exercisable) or (iii) options,
warrants or rights to purchase such convertible or exchangeable
securities (whether or not at the time exercisable):
(I) the aggregate maximum number of shares of Capital Stock
deliverable upon exercise of such options, warrants or other
rights to purchase or acquire Capital Stock shall be deemed to
have been
<PAGE>
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issued at the time such options, warrants or rights were issued
and for a consideration equal to the consideration (determined in
the manner provided in subclauses (A) and (B) above), if any,
received by the Corporation upon the issuance of such options,
warrants or rights plus the minimum purchase price provided in
such options, warrants or rights for the Capital Stock covered
thereby (the amount of the purchase price in each case to be
determined in the manner provided in subclauses (A) and (B)
above);
(II) the aggregate maximum number of shares of Capital
Stock deliverable upon conversion of or in exchange for any such
convertible or exchangeable securities, or upon the exercise of
options, warrants or other rights to purchase or acquire such
convertible or exchangeable securities and the subsequent
conversion or exchange thereof, shall be deemed to have been
issued at the time such securities were issued or such options,
warrants or rights were issued and for a consideration equal to
the consideration, if any, received by the Corporation for any
such securities and related options, warrants or rights
(excluding any cash received on account of accrued interest or
accrued dividends), plus the minimum additional consideration, if
any, to be received by the Corporation upon the conversion or
exchange of such securities and the exercise of any related
options, warrants or rights (the consideration in each case to be
determined in the manner provided in subclauses (A) and (B)
above);
(III) on any change in the number of shares of Capital Stock
deliverable upon exercise of any such options, warrants or rights
or conversion of or exchange for such convertible or exchangeable
securities or any change in the consideration to be received by
the Corporation upon such exercise, conversion or exchange,
(other than under or by reason of provisions designed to protect
against dilution), the Applicable Series Conversion Price as then
in effect shall forthwith be readjusted to such Applicable Series
Conversion Price as would have been obtained had an adjustment
been made upon the issuance of such options, warrants or rights,
or securities on the basis of such change; provided, however,
there shall be no adjustment pursuant to this clause (III) to the
extent that any of such options, warrants, rights or securities
shall have been exercised, converted or exchanged, as the case
may be, prior to such change;
<PAGE>
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(IV) on the expiration or cancellation of one or more of
such options, warrants or rights, or the termination of the right
to convert or exchange one or more of such convertible or
exchangeable securities, if the Applicable Series Conversion
Price shall have been adjusted upon the issuance thereof and any
of such options, warrants, rights or securities shall not have
been exercised, converted or exchanged, as the case may be, prior
to such expiration or cancellation, the Applicable Series
Conversion Price shall forthwith be readjusted to such Applicable
Series Conversion Price as would have been obtained had an
adjustment been made upon only the issuance of such options,
warrants, rights or securities on the basis of the issuance of
only the number of shares of Capital Stock that would actually
have been issued upon the exercise of such options, warrants or
rights, or upon the conversion or exchange of such securities;
and
(V) if the Applicable Series Conversion Price has been
adjusted upon the issuance of any such options, warrants, rights
or convertible or exchangeable securities, no further adjustment
of the Applicable Series Conversion Price shall be made for the
actual issuance of Capital Stock upon the exercise, conversion or
exchange thereof; provided, however, that, except as provided in
clause IV of subparagraph 5(f)(i)(C), no increase in the
Applicable Series Conversion Price shall be made pursuant to this
clause (C).
(v) Excluded Stock. "Excluded Stock" shall mean: (1) shares of
Common Stock, any other series of Common Shares or any series of
Preferred Stock to be issued pursuant to the 1989 Stock Option Plan of
the Corporation or any other stock options or warrants granted or sold
to employees, consultants, advisors or directors of the Corporation
relating to the provision of services to the Corporation; (2) the
options and warrants described in (1); (3) shares of Common Stock, any
other series of Common Shares or any series of Preferred Shares issued
by under provisions of the Certificate of Incorporation as from time
to time in effect or by virtue of agreements designed to protect
against dilution; and (4) shares of Common Stock, any other series of
Common Shares or any series of Preferred Shares issued or reserved for
issuance by the Corporation upon conversion of any series of Preferred
Shares.
(vi) Stock Dividends. If the number of shares of Common Stock
outstanding at any time after the Applicable Series Issue Date is
increased by a stock dividend payable in shares of Common Stock or by
a subdivision or split-up of
<PAGE>
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shares of Common Stock, then immediately after the record date fixed
for the determination of holders of Common Stock entitled to receive
such stock dividend or the effective date of such subdivision or
split-up, as the case may be, the Applicable Series Conversion Price
shall be appropriately reduced so that the holder of any shares of
Preferred Stock thereafter converted shall be entitled to receive the
number of shares of Common Stock which such holder would have owned
immediately following such action had such shares of Preferred Stock
been converted immediately prior thereto.
(vii) Combination of Stock. If the number of shares of Common
Stock outstanding at any time after the Applicable Series Issue Date
is decreased by a combination of the outstanding shares of Common
Stock, then immediately after the effective date of such combination,
the Applicable Series Conversion Price shall be appropriately
increased so that the holder of any shares of any series of Preferred
Stock thereafter converted shall be entitled to receive the number of
shares of Common Stock which such holder would have owned immediately
following such action had such shares of such series of Preferred
Stock been converted immediately prior thereto.
(viii) Reclassification. In the event of a reclassification of
the Common Stock, each share of Preferred Stock shall, after such
reclassification, be convertible into the number and type of shares of
capital stock or other securities to which the Common Stock issuable
(at the time of such reclassification) upon conversion of such shares
of Preferred Stock would have been entitled upon such
reclassification; and, in such event, if necessary, the provisions set
forth herein with respect to the rights and interests thereafter of
the holders of Preferred Stock shall be appropriately adjusted so as
to be applicable, as nearly as may reasonably be, to any shares of
stock or other securities thereafter deliverable upon the conversion
of such Preferred Stock. The subdivision or combination of Common
Stock issuable upon conversion of Preferred Stock at any time
outstanding into a greater or lesser number of shares of Common Stock
(whether with or without par value) shall not be deemed to be a
reclassification of the Common Stock of the Corporation for the
purposes of this clause (v).
(ix) Rounding of Calculations; Minimum Adjustment. All
calculations under this subparagraph (f) shall be made to the nearest
cent or to the nearest one one-hundredth (1/100th) of a share, as the
case may be. Any provision of this paragraph 5 to the contrary
notwithstanding, no adjustment to any Applicable Series Conversion
Price shall be made if the amount of such adjustment would be less
than $.01, but any such amount shall be carried forward and an
adjustment with respect thereto shall be made at the time of and
together with any subsequent adjustment which, together with such
<PAGE>
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amount and any other amount or amounts so carried forward, shall
aggregate $.0l or more.
(x) Timing of Issuance of Additional Common Stock upon Certain
Adjustments. In any case in which the provisions of this subparagraph
(f) shall require that an adjustment shall become effective
immediately after a record date for an event, the Corporation may
defer until the occurrence of such event (1) issuing to the holder of
any share of Preferred Stock converted after such record date and
before the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the shares of Common Stock
issuable upon such conversion before giving effect to such adjustment
and (2) paying to such holder any amount of cash in lieu of a
fractional share of Common Stock pursuant to subparagraph (e) of this
paragraph 5; provided, however, that the Corporation upon request
shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional
shares, and such cash, upon the occurrence of the event requiring such
adjustment.
(xi) Prohibition of Action Resulting in Minimum Conversion
Price. The Corporation shall not take any action of the kind covered
by this subparagraph 5(f) which would cause the Applicable Series
Conversion Price to fall below the greater of $.0l and the par value
of the Common Stock.
(g) Current Market Price. The Current Market Price at any date shall
mean the price per share of Capital Stock on such date determined by the
Board of Directors as provided below. The Current Market Price shall be
the average of the daily closing price per share of such Capital Stock for
thirty (30) consecutive business days ending no more than fifteen (15)
business days before the day in question (as adjusted for any stock
dividend, split, combination or reclassification that took effect during
such 30-day period). The closing price for each day shall be the last
reported sales price regular way or, in the case no such reported sales
take place on such day, the average of the last reported bid and asked
prices regular way, in either case, on the principal national securities
exchange on which such Capital Stock is listed or admitted to trading,
unless such principal national securities exchange is a regional securities
exchange and such Capital Stock is also quoted on the National Association
of Securities Dealers Automated Quotation System (the "NASDAQ System"), or
if not listed or admitted to trading on a national securities exchange or
if such principal securities exchange is a regional securities exchange and
such Capital Stock is also quoted on the NASDAQ System, the average of the
highest bid and the lowest asked prices quoted on the NASDAQ System or, if
not so quoted, as reported by the National Quotation Bureau, Inc.;
provided,
<PAGE>
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however, that if such Capital Stock is not traded in such manner that any
of the quotations referred to above is available for the period required
hereunder, the Current Market Price per share of such Capital Stock shall
be deemed to be the fair market value as determined by the Board of
Directors in good faith, irrespective of any accounting treatment.
(h) Statement Regarding Adjustments. Whenever any Applicable Series
Conversion Price shall be adjusted as provided in subparagraph 5(f), the
Corporation shall forthwith file, at the office of any transfer agent for
the series of Preferred Stock affected and at the principal office of the
Corporation, a statement showing in detail the facts requiring such
adjustment and the Applicable Series Conversion Price that shall be in
effect after such adjustment, and the Corporation shall also cause a copy
of such statement to be sent by mail, first-class postage prepaid, to each
holder of such series of Preferred Stock at its address appearing on the
Corporation 5 records. Where appropriate, such copy may be given in
advance and may be included as part of a notice required to be mailed under
the provisions of subparagraph 5(i).
(i) Notice to Holders. In the event the Corporation shall propose to
take any action of the type described in clause (i) of subparagraph 5(f)
(but only if the action of the type described in clause (i) would result in
an adjustment in an Applicable Series Conversion Price), (iii), (iv) or (v)
of subparagraph 5(f), the Corporation shall give notice to each holder of
shares of the series of Preferred Stock affected, in the manner set forth
in subparagraph 5(h), which notice shall specify the record date, if any,
with respect to any such action and the approximate date on which such
action is to take place. Such action shall also set forth such facts with
respect thereto as shall be reasonably necessary to indicate the effect of
such action (to the extent such effect may be known at the date of such
notice) on the Applicable Series Conversion Price and the number, kind or
class of shares or other securities or property which shall be deliverable
or purchasable upon the occurrence of such action or deliverable upon
conversion of shares of such Preferred Stock. In the case of any such
action which would require the fixing of a record date, such notice shall
be given at least twenty (20) calendar days prior to the date so fixed, and
in the case of all other action, such notice shall be given at least thirty
(30) calendar days prior to the taking of such proposed action. Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of any such action.
(j) Treasury Stock. For the purposes of this paragraph 5, the sale
or other disposition (other than sales or dispositions to employees,
consultants, advisors or
<PAGE>
-16-
directors of the Corporation in connection with the provision of services
to the Corporation) of any capital stock of the Corporation theretofore
held in its treasury shall be deemed to be an issuance thereof.
(k) Costs. The Corporation shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the issuance or
delivery of shares of Common Stock of the Corporation upon conversion of
any shares of Preferred Stock; provided, however, that the Corporation
shall not be required to pay any taxes which may be payable in respect of
any transfer involved in the issuance or delivery of any certificate for
such shares in a name other than that of the holder of the shares of
Preferred Stock in respect of which such shares are being issued.
(1) Reservation of Shares. The Corporation shall reserve at all
times so long as any shares of Preferred Stock remain outstanding out of
its treasury stock or its authorized but unissued shares of Common Stock,
or both, solely for the purpose of effecting the conversion of the shares
of Preferred Stock, sufficient shares of Common Stock to provide for the
conversion of all outstanding shares of Preferred Stock.
(m) Approvals. If any shares of Common Stock to be reserved for the
purpose of conversion of shares of Preferred Stock require registration
with or approval of any governmental authority under any Federal or state
law before such shares may be validly issued or delivered upon conversion,
then the Corporation will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be. If,
and so long as, any Common Stock into which the shares of Preferred Stock
are then convertible is listed in any national securities exchange, the
Corporation will, if permitted by the rules of such exchange, list and keep
listed on such exchange, upon official notice of issuance, all shares of
such Common Stock issuable upon conversion.
(n) Valid Issuance. All shares of Common Stock which may be issued
upon conversion of the shares of Preferred Stock will upon issuance by the
Corporation be duly and validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issuance thereof
and the Corporation shall take no action which will cause a contrary result
(including, without limitation, any action which would cause the Applicable
Series Conversion Price to be less than the par value, if any, of the
Common Stock).
<PAGE>
-17-
(6) Voting Rights.
(a) General. Except as may be otherwise required by law or by the
provisions of this paragraph 6, the holders of Preferred Stock shall vote
together with the holders of Common Stock as a single class on every matter
coming before any meeting of the shareholders or otherwise to be acted upon
by the shareholders. At every meeting of the shareholders of the
Corporation, every holder of Preferred Stock shall be entitled, for each
such share standing in its name on the transfer books of the Corporation,
to a number of votes equal to the number of votes which could be cast by
such holder if it held the Common Stock Equivalent of such share of
Preferred Stock on the record date for such vote.
(b) Changes to Series of Preferred Stock. Without the affirmative
vote of the holders of at least a majority of the shares of a series of
Preferred Stock at the time outstanding, the Corporation may not effect any
change in the powers, preferences, privileges, rights, qualifications,
limitations or restrictions of such series of Preferred Stock; provided,
however, and without expanding the foregoing limited class voting rights,
no such separate class vote shall be required of any series of Preferred
Stock in order to amend the Certificate of Incorporation of the Corporation
to authorize any new class of stock, whether such class is senior, on a
parity with or junior to the such series of Preferred Stock in dividends,
liquidation, voting rights or otherwise. Such consents shall either be
given in writing or by vote at a meeting called for that purpose at which
the holders of such series of Preferred Stock shall vote as a class.
(c) Other Special Series Voting Rights of the Preferred Stock. A
separate affirmative vote of the holders of at least a majority of the
shares of Preferred Stock outstanding and voting as a single class shall be
required for any additional series of Common Shares or Preferred Stock to
be issued if:
(i) Such series has senior rights to the Preferred Stock upon
any Liquidation of the corporation, or
(ii) (I) Such series has equivalent rights to the Preferred
Stock upon any Liquidation of the Corporation, and
(II) The aggregate amount received by the Corporation in
respect of the issuance or sale of shares of Capital Stock having
equivalent rights
<PAGE>
-18-
to the Preferred Stock upon any Liquidation of the Corporation from an
after the Applicable Series Issue Date (including capital invested
upon issuance of not in excess of 2,400,000 shares of Series A
Preferred Stock and 4,000,000 shares of Series B Preferred Stock)
through and inclusive of the additional series of Common Shares or
Preferred Shares proposed to be issued exceeds $20,000,000.
(d) Special Redemption Rights. If in any case of a separate class
vote of the Preferred Stock is a required under clause (i) or (ii) of
subparagraph (c) above a majority of the outstanding shares of the
Preferred Stock are not voted in favor of such issuance of stock, but the
holders of majority of the then issued and outstanding Common Stock voting
as a separate class vote in favor of such issuance then the Corporation
shall have the right to redeem all but not less than all of the outstanding
shares of the Preferred Stock at the following per share price (subject to
adjustment for stock dividends, splits, combinations, etc.) (the
"Redemption Price"):
If Redemption Date occurs:
Redemption Price
------------------
on or after and prior to Series A Series B
----------- ------------ -------- --------
July 1, 1992 June 30, 1993 $3.46
July 1, 1993 June 30, 1994 $3.74 $4.32
July 1, 1994 June 30, 1995 $3.74 $4.67
July 1, 1995 June 30, 1996 $3.74 $5.04
July 1, 1996 June 30, 1997 $3.74 $5.44
July 1, 1997 June 30, 1998 $3.74 $5.88
After July 1, 1998 $3.74 $6.35
The Corporation's redemption right may be exercised at any time within
12 months after the record date for the special class vote provided in
clause (i) or (ii) of subparagraph (c) by giving written notice to the
holder of record of each share of Series A Preferred Stock and Series B
Preferred Stock at least 30 days prior to the date on which the redemption
is to occur ("Redemption Date"). On the Redemption Date the Corporation
shall tender the Redemption Price to each record holder of Preferred Stock
against delivery of stock certificates for the Preferred Stock being
redeemed; provided that until the close of business on the date immediately
preceding the Redemption Date each holder of Preferred Stock shall be
entitled to convert such stock to Common Stock pursuant to the terms
hereof.
Notwithstanding the provision of subparagraph (c) in order to permit
the Corporation to issue securities to provide in whole or in part funds to
redeem the Preferred Stock as contemplated hereby, the Certificate of
Incorporation may be amended and/or additional series of
<PAGE>
-19-
Common Shares or Preferred Shares may be issued solely upon the requisite
vote of other series and classes of Common Shares and Preferred Shares
(other than Series A Preferred Stock and Series B Preferred Stock) provided
the Corporation uses all or a portion of the proceeds to redeem all
outstanding Series A Preferred Stock and Series B Preferred Stock.
(7) Right of Conversion upon Merger or Consolidation.
In case of any consolidation or merger of the Corporation with any other
corporation (other than a consolidation or merger in which the Corporation
is the continuing or surviving corporation and which does not result in any
change in the outstanding Common Stock), or in case of any sale or transfer
of all or substantially all the assets of the Corporation, or in case of a
binding share exchange in which all the outstanding shares of the Common
Stock are changed into cash, stock or other securities or property, the
holder of each share of Preferred Stock shall at any time after such
consolidation, merger, sale or transfer or binding share exchange have the
right to convert such share of Preferred Stock into the kind and amount of
shares of stock or other securities or property or cash, as the case may
be, which such holder would have been entitled to receive upon such
consolidation, merger, sale or transfer or binding share exchange if he had
held the Common Stock issuable upon the conversion of such share of
Preferred Stock immediately prior to such consolidation, merger, sale or
transfer or binding share exchange.
(8) Retirement of Shares.
Shares of Preferred Stock which have been issued and have been redeemed,
converted, repurchased or reacquired in any manner by the Corporation shall
be canceled and shall not be reissued.
(9) Certain Rights of Participation in Stock Issuances.
In the event that the Corporation shall issue any equity securities or
securities exercisable for or convertible into equity securities of the
Corporation (hereinafter "Equity Securities"), each holder of shares of
Preferred Stock shall have the right to purchase such amount of such Equity
Securities which will enable such holder to retain the percentage ownership
interest (in terms of Common Stock or Common Stock Equivalents) in the
Corporation which such holder had immediately prior to such issuance of
Equity Securities. No later than twenty (20) days after the issuance of
any Equity Securities the Corporation shall give each record holder of
Preferred Stock written notice (the
<PAGE>
-20-
"Notice") of the issuance or proposed issuance of such Equity Securities
and shall offer to sell to each such holder the amount of Equity Securities
described in the preceding sentence on the same terms and conditions which
such Equity Securities were or are proposed to be issued. Each such holder
shall have a period of twenty (20) days after the date of the Notice to
purchase such amount of Equity Securities on such terms and conditions.
The rights of participation provided in this paragraph shall not apply to
Equity Securities issued under the provisions of this paragraph, upon
conversion or exercise of any Equity Securities, as a stock dividend or
upon any subdivision of any Equity Securities, in consideration in whole or
in part for the acquisition (whether by merger or otherwise) by the
Corporation or any of its subsidiaries of all or substantially all of the
stock or assets of any other entity, in connection with any transaction
(e.g. a joint venture, technology licensing, distribution or other
arrangement) with respect to which the Board of Directors has made a good
faith determination that the primary purpose of such transaction is the
advancement of the business interests of the Corporation as opposed to the
raising of funds, pursuant to a firm commitment underwritten public
offering, pursuant to the grant of options or warrants to and the exercise
of the same to purchase Equity Securities by employees, consultants,
advisors or directors of the Corporation relating to the providing of
services to the Corporation or the issuance of treasury shares acquired
from employees, consultants, advisors or directors, upon the exercise of
any right which was not itself in violation of the terms of this paragraph,
the issuance of securities pursuant to anti-dilution, preemptive,
participation or similar rights granted herein or by contract or the
issuance of Equity Securities all or a portion of the proceeds of which
will be used in redeem Preferred Stock as provided in Subparagraph 6(d)
hereof. The rights of the holders of Preferred Stock under this paragraph
may be waived by a vote or consent of persons holding a majority of the
Common Stock Equivalents at the time represented by the issued and
outstanding shares of Preferred Stock.
(10) Other Series of Preferred Shares.
The Thirteen Million Five Hundred Thousand (13,500,000) Preferred Shares
may be issued from time to time in one or more series, the shares of each
series to have such voting powers, full or limited, or no voting powers,
and such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions
thereof, as are stated and expressed herein or in the resolution or
resolutions providing for the issue of such series,
<PAGE>
-21-
adopted by the Board of Directors as hereinafter provided.
(a) Authority is hereby expressly granted to the Board of Directors of the
Corporation, subject to the provisions of this Article FOURTH and to
the limitations prescribed by the General Corporation Law of Delaware,
to authorize the issue of one or more series of Preferred Shares, and
with respect to each such series to fix by resolution or resolutions
providing for the issue of such series the voting powers, full or
limited, if any, of the shares of such series and the designations,
preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof. The
authority of the Board of Directors with respect to each series shall
include, but not be limited to, the determination or fixing of the
following:
(i) The designation of such series;
(ii) The dividend rate of such series, the conditions and dates
upon which such dividends shall be payable, the relationship
which such dividends shall bear to the dividends payable on
any other class or classes of stock or any other series of
any class of stock of the Corporation, and whether such
dividends shall be cumulative or non-cumulative;
(iii) Whether the shares of such series shall be subject to
redemption by the Corporation and, if made subject to such
redemption, the times, prices and other terms and conditions
of such redemption;
(iv) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(v) Whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other
class or classes of any stock or any other series of any
class of stock of the Corporation, and, if provision is made
for conversion or exchange, the times, prices, rates,
adjustments, and other terms and conditions of such
conversion or exchange;
(vi) The extent, if any, to which the holders of shares of such
series shall be entitled to vote with respect to the
election of directors or otherwise;
<PAGE>
-22-
(vii) The restrictions, if any, on the issue or reissue of any
additional Preferred Shares;
(viii) The rights of the holders of the shares of such series upon
the voluntary or involuntary liquidation, dissolution or
winding up of the affairs of, or upon the distribution of
the assets of, the Corporation; and
(ix) Any other rights, preferences or limitations of the shares
of such series consistent with the provisions hereof
governing the Preferred Shares.
SECOND: That in lieu of a meeting and vote of stockholders, the holders
of a majority of the issued and outstanding shares of each class of the capital
stock of the Corporation required to approve such amendment have given their
written consent to said amendment in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware and written notice
of the adoption of the amendment has been given as provided in said Section 228
to every stockholder entitled to said notice.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
<PAGE>
-23-
IN WITNESS WHEREOF, said Progenics Pharmaceuticals, Inc. has caused this
certificate to be signed by Paul J. Maddon, its President, and attested by
Robert McKinney, its Assistant Secretary, this 24 day of November, 1992.
PROGENICS PHARMACEUTICALS, INC.
By: /s/Paul J. Maddon
----------------------
President
ATTEST:
By: /s/Robert McKinney
---------------------
Assistant Secretary
STATE OF NEW YORK )
) SS
COUNTY OF WESTCHESTER )
On the 24 day of November, 1992 personally appeared before me Paul J.
Maddon and Robert McKinney, who, being by me duly sworn, declared that they are
the President and an Assistant Secretary, respectively, of Progenics
Pharmaceuticals, Inc., a Delaware corporation, and that the within and foregoing
Certificate of Amendment to the Certificate of Incorporation of Progenics
Pharmaceuticals, Inc. was signed on behalf of said corporation by authority of a
resolution of the Board of Directors and a resolution of the shareholders of
Progenics Pharmaceuticals, Inc., and said persons duly acknowledged to me that
said corporation executed the Certificate of Amendment to the Certificate of
Incorporation, and verified that the matters set forth and the statements
therein are true and correct.
Gladys Leiva GLADYS LEIVA
- ---------------------- Notary Public, State of New York
NOTARY PUBLIC No 4895173
Qualified in Westchester County
My Commission Expires: 5/18/93 Commission Expires May 18, 1993
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISIONS OF CORPORATIONS
FILED 9:00 AM 12/08/1996
CERTIFICATE OF DESIGNATION
OF
SERIES C PREFERRED STOCK
($.001 Par Value)
OF
PROGENICS PHARMACEUTICALS, INC.
-------------------------
Pursuant to Section 151 (g) of the General Corporation Law
of the State of Delaware
------------------------
THE UNDERSIGNED, being, respectively, the President and the Assistant
Secretary of Progenics Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), DO HEREBY CERTIFY that, pursuant to the provisions of Section 151(g)
of the General Corporation Law of the State of Delaware the following
resolutions were duly adopted by the Board of Directors of the Company and
pursuant to authority conferred upon the Board of Directors by the provisions of
the Certificate of Incorporation (as amended) of the Company (the "Certificate
of Incorporation"), the Board of Directors of the Company, at a meeting duly
held on June 8, 1995, adopted resolutions providing for the issuance of a series
of its Preferred Stock and fixing the relative powers, preferences, rights,
qualifications, limitations and restrictions of such stock. These resolutions
are as follows:
RESOLVED, that pursuant to the authority granted expressly to and vested
in the Board of Directors of the Company by the provisions of the Certificate of
Incorporation of the
<PAGE>
Company, as amended, (the "Certificate of Incorporation"), the issuance of a
series of preferred stock, par value $.001 per share (the "Preferred Stock"),
which shall consist of up to 3,750,000 shares of Preferred Stock that the
Company has authority to issue, be, and the same hereby is, authorized, and the
Board of Directors hereby fixes the powers, designations, preferences and
relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof, of the shares of such
series (in addition to the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof set forth in the Certificate of
Incorporation that may be applicable to the Preferred Stock) as follows:
Section 1. Number of Shares and Designation. 3,750,000 shares of the
preferred stock, $.001 par value per share, of the Company are hereby
constituted as a series of the preferred stock designated as Series C Preferred
Stock (the "Series C Preferred Stock").
Section 2. Definitions. Unless the context requires otherwise, the terms
defined in this Section shall have, for all purposes hereof, the following
meanings:
"Board of Directors" shall mean the Board of Directors of the Company.
"Capital Stock" shall have the meaning assigned thereto in Section 5(f).
"Common Shares" shall mean the Common Shares, par value $0.01 per share of
the Company.
"Common Stock" shall mean the Common Stock, par value $0.01 per share, of
the Company.
"Common Stock Equivalent" shall mean at any time the number of shares of
Common Stock (including fractions of a share) into which a share of Preferred
Stock could be converted at such time.
"Conversion Date" shall have the meaning assigned thereto in Section 5(d).
"Current Market Price" shall have the meaning assigned thereto in Section
5(g).
"Distributable Amount" shall have the meaning assigned thereto in Section
4.
"Equity Securities" shall have the meaning assigned thereto in Section 9.
"Excluded Stock" shall have the meaning assigned thereto in Section 5(f).
"Junior Stock" shall mean any series of Common Shares, and any other class
or series of capital stock of the Company ranking junior to the Preferred Stock
either as to rights on Liquidation or as to dividends or distributions.
"Junior Stock Capital Percentage" shall mean at any time the fraction
(expressed as a percentage) obtained by dividing (a) the Junior Stock Invested
Capital by (b) the Total Invested Capital.
2
<PAGE>
"Junior Stock Invested Capital" shall mean $1,095,000.00.
"Liquidation" shall mean any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary.
"Original Series Issue Price" shall have the meaning assigned thereto in
Section 5(a).
"Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
"Preferred Stock" shall mean the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and any other series of Preferred
Shares that are specifically designated as Preferred Stock.
"Redemption Date" shall have the meaning assigned thereto in Section 6(d).
"Redemption Price" shall have the meaning assigned thereto in Section
6(e).
"Series A Capital Percentage" shall mean at any time the fraction
(expressed as a percentage) obtained by dividing (a) the Series A Invested
Capital by (b) the Total Invested Capital.
"Series A Invested Capital" shall mean at any time the sum of the
aggregate amount of cash received by the Company (x) upon the original issuance
of all then outstanding shares of Series A Preferred Stock other than shares
sold or transferred from treasury stock and (y) in the case of outstanding
shares sold or transferred from treasury stock, the aggregate amount received by
the Company in respect of such transfer.
"Series A Preferred Stock" shall mean the Series A Preferred Stock, par
value $0.01 per share, of the Company.
"Series B Capital Percentage" shall mean at any time the fraction
(expressed as a percentage) obtained by dividing (a) the Series B Invested
Capital by (b) the Total Invested Capital.
"Series B Invested Capital" shall mean at any time the sum of the
aggregate amount of cash received by the Company (x) upon the original issuance
of all then outstanding shares of Series B Preferred Stock other than shares
sold or transferred from treasury stock and (y) in the case of outstanding
shares sold or transferred from treasury stock, the aggregate amount received by
the Company in respect of such transfer.
"Series B Preferred Stock" shall mean the Series B Preferred Stock, par
value $0.01 per share, of the Company.
"Series C Preferred Stock" shall mean the Series C Preferred Stock, par
value $0.01 per share, of the Company.
3
<PAGE>
"Series Conversion Price" shall have the meaning assigned thereto in
Section 5(c).
"Series Issue Date" shall mean the date on which shares of the Series C
Preferred Stock are first issued.
"Total Invested Capital" shall mean at any time the sum of (a) the Junior
Stock Invested Capital, (b) the Series A Invested Capital and (c) the Series B
Invested Capital.
Section 3. Dividends. No dividends may be declared on or paid to any
series of Common Shares, Junior Stock or Preferred Stock except as a part of a
declaration or payment of dividends to a group consisting of the Preferred Stock
and one or more series of Common Shares or Junior Stock. As between the class
consisting of the Preferred Stock and the class consisting of one or more series
of Common Shares or Junior Stock, dividends shall be allocated between such
classes pro rata based on the sum of (a) the number of shares of such series of
Common Shares or Junior Stock are issued and outstanding on the dividend record
date and (b) the number of Common Stock Equivalents with respect to the
Preferred Stock on the dividend record date. No dividends shall be paid to the
Series C Preferred Stock except as part of a dividend paid to the group
consisting of Series A Preferred Stock, Series B Preferred Stock and the Series
C Preferred Stock and holders of record of the Series A Preferred Stock, the
Series B Preferred Stock and the Series C Preferred Stock shall receive from the
amount available to such group individuals pro rata to the number of Common
Stock Equivalents with respect to the Series A Preferred Stock, the Series B
Preferred Stock and the Series C Preferred Stock held of record by such holder
on the dividend record date.
Section 4. Distributions Upon Liquidation, Dissolution or Winding Up. In
the event of any Liquidation, no distributions may be made with respect to any
series of Common Shares, Junior Stock or Preferred Stock except as part of a
distribution to a group consisting of the Preferred Stock and one or more series
of Common Shares or Junior Stock. From the assets of the Company available for
distribution to the holders of Preferred Stock and one or more series of Common
Shares or Junior Stock (the "Distributable Amount"), the holders of Common
Shares or Junior Stock shall receive the Junior Stock Capital Percentage, the
holders of Series A Preferred Stock shall receive the Series A Capital
Percentage, the holders of Series B Preferred Stock shall receive the Series B
Capital Percentage and the holders of Series C Preferred Stock shall receive the
Series C Capital Percentage of any distributions of the Distributable Amount.
The Distributable Amount shall be so allocated until the aggregate amount per
share of such distributions (together with all other distributions and dividends
and subject to adjustment for stock dividends, splits, combinations, etc.)
received by the holders of (i) the Common Stock and Junior Stock shall equal the
Junior Stock Invested Capital, (ii) the Series A Preferred Stock shall equal the
Series A Invested Capital, (iii) the Series B Preferred Stock shall equal the
Series B Invested Capital and (iv) the Series C Preferred Stock shall equal the
Series C Invested Capital. Thereafter the holders of such series of Common
Shares and Junior Stock and the holders of Preferred Stock shall receive
distributions of the Distributable Amount pro rata to the number of shares of
Common Stock, Junior Stock and the number of Common Stock Equivalents with
respect to the Preferred Stock held by such holders on the record date for such
distributions. Distributions made to the class consisting of holders of such
series of Common Shares shall be made pro rata to the number of shares of such
series of Common Shares held of record by each such holder as of the record date
for such distribution. Distributions made to the class consisting of holders of
such Junior Stock shall be made pro rata to the number of shares
4
<PAGE>
of such Junior Stock held of record by each such holder as of the record date
for such distribution. Distributions made to the class consisting of holders of
Preferred Stock shall be made pro rata to the Common Stock Equivalents with
respect to the shares of Preferred Stock held of record by each such holder as
of the record date for such distribution.
Section 5. Conversion Rights. The holders of Series C Preferred Stock
shall have the following conversion rights:
(a) Optional Conversion. Subject to and upon the compliance with the
provisions of this Section 5, the holder of any share or shares of Series
C Preferred Stock shall have the right at such holder's option, at any
time or from time to time, to convert any of such shares of Series C
Preferred Stock (except that upon any Liquidation of the Company the right
of conversion shall terminate at the close of business on the business day
fixed for payment of the amount distributable on the Series C Preferred
Stock) into such number of fully-paid and nonassessable shares of Common
Stock as is obtained by (a) multiplying the number of Shares of Series C
Preferred Stock to be so converted by the Original Series Issue Price and
(b) dividing the result by the Series Conversion Price as defined in
Section 5(c). The term "Original Series Issue Price" shall mean $5.00 per
share.
(b) Automatic Conversion. Each outstanding share of Series C
Preferred Stock shall be converted automatically, without any further act
of the Company or its shareholders, into fully-paid and nonassessable
shares of Common Stock at the Series Conversion Price then in effect on
the earlier to occur of (a) the closing of a public offering by the
Company pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offering and sale of any
shares of any series of Common Shares by the Company for the account of
the Company in which (i) the aggregate gross proceeds (before deduction of
any underwriting discount, commission or expense) received by the Company
equal or exceed $5,000,000 and (ii) the price per share of such Common
Shares equals or exceeds 200% of the Series Conversion Price in effect
immediately prior to the closing of the sale of such shares by the
Company, and (b) the date as of which there shall have been converted
under Section 5(a) a cumulative aggregate number of shares of Series C
Preferred Stock equal to a majority of the issued and outstanding shares
of Series C Preferred Stock as of December 31, 1995.
(c) Series Conversion Price. The term "Series Conversion Price"
shall mean $5.00 per share, as such price may from time to time be
adjusted pursuant to the provisions of Section 5(f) and as such price as
adjusted is in effect at the date any shares or shares of Series C
Preferred Stock are surrendered for conversion. No payment or adjustment
shall be made for any dividends on the Common Stock issuable upon such
conversion.
(d) Mechanics of Conversion. Upon the occurrence of the event
specified in Section 5(b), the outstanding shares of Series C Preferred
Stock shall be converted automatically without any further action by the
holders of such shares and whether or not the certificates representing
such shares are surrendered to the Company or its transfer agent;
provided, however, that the Company shall not be obligated to issue to any
such holder certificates evidencing the shares of Common Stock issuable
upon such conversion unless certificates evidencing such shares of
Preferred Stock are
5
<PAGE>
delivered to the Company or any transfer agent of the Company. The holder
of any shares of Series C Preferred Stock may exercise the conversion
right specified in Section 5(a) as to all or a minimum of 1,000 shares of
Series C Preferred Stock held by such holder or surrendering to the
Company or any transfer agent of the Company the certificate or
certificates for the shares of Series C Preferred Stock to be converted,
accompanied by written notice stating that the holder elects to convert
all or a specified portion of the shares of Series C Preferred Stock
represented thereby. Conversion shall be deemed to have been effected (i)
in the case of an automatic conversion pursuant to Section 5(b), on the
date of the occurrence of the event specified Section 5(b) or (ii) in any
other case, on the date when delivery of notice of any election to convert
and the certificates for shares is made (each such date described in
clause (i) or clause (ii) above being referred to herein as the
"Conversion Date"). Subject to the provisions of clause (viii) of Section
5(f), as promptly as practicable thereafter (and after surrender of the
certificate or certificates representing shares of Series C Preferred
Stock to the Company or any transfer agent of the Company in the case of
conversions pursuant to Section 5(b)) the Company shall issue and deliver
to, or upon the written order of, such holder a certificate of
certificates for the number of full shares of Common Stock to which such
holder is entitled and a check or cash with respect to any fractional
interest in a share of Common Stock as provided in Section 5(e). Subject
to the provisions of clause (viii) of Section 5(f), the Person in whose
name the certificate or certificates for Common Stock are to be issued
shall be deemed to have become a holder of record of such Common Stock on
the applicable Conversion Date. Upon conversion of only a portion of the
number of shares of Series C Preferred Stock covered by a certificate
representing shares of Series C Preferred Stock surrendered for conversion
(in the case of conversion pursuant to Section 5(a)), the Company shall
issue and deliver to, or upon the written order of, the holder of the
certificate so surrendered for conversion, at the expense of the Company,
a new certificate covering the number of shares of Series C Preferred
Stock representing the unconverted portion of the certificate so
surrendered.
(e) Fractional Shares. No fractional shares of Common Stock or scrip
shall be issued upon conversion of shares of Series C Preferred Stock. If
more than one share of Series C Preferred Stock shall be surrendered for
conversion at any one time by the same holder, the number of full shares
of Common Stock issuable upon conversion thereof shall be completed on the
basis of the aggregate number of shares of Series C Preferred Stock so
surrendered. Instead of any fractional shares of Common Stock that would
otherwise be issuable upon conversion of any shares of Series C Preferred
Stock, the Company shall pay a cash adjustment in respect of such
fractional interest in an amount equal to that fractional interest of the
then Current Market Price.
(f) Conversion Price Adjustments. The Series Conversion Price and
number of shares of Common Stock deliverable upon conversion of the shares
of Series C Preferred Stock shall be subject to adjustment from time to
time as follows:
(i) Issuances of Capital Stock Prior to or on December 31,
1996. If, at any time after the Series Issue Date but prior to (and
including) December 31, 1996, the Company shall issue (or deemed to
have issued pursuant to clause (v) below) any capital stock (whether
Common Stock, any series of Common Shares or an otherwise series of
Preferred Stock) other than Excluded Stock (as hereinafter defined)
(capital stock, other than Excluded Stock, issued after the
6
<PAGE>
Series Issue Date being hereinafter referred to as "Capital Stock")
for a consideration per share (or, in the case of Capital Stock
convertible into Common Shares, for consideration per share based on
the Common Stock Equivalent number of shares) less than the Series
Conversion Price applicable immediately prior to such issuance, the
Series Conversion Price in effect immediately prior to such issuance
shall immediately (except as provided below) be reduced to a price
determined by dividing (a) the total consideration, if any, received
by the Company on such issue by (b) the Common Stock Equivalent of
the number of shares of Capital Stock issued by the Company in such
issue.
(ii) Issuances of Capital Stock. If, at any time after
December 31, 1996, the Company shall issue (or deemed to have issued
pursuant to clause (v) below) any Capital Stock other than Excluded
Stock for a consideration per share (or, in the case of Capital
Stock convertible into Common Shares, for consideration per share
based on the Common Stock Equivalent of the number of shares), less
than the Series Conversion Price applicable immediately prior to
such issuance, the Series Conversion Price in effect immediately
prior to such issuance shall immediately (except as provided below)
be reduced to a price determined by dividing (a) the sum of (i) the
Common Stock Equivalent of the number of shares of capital stock
outstanding immediately prior to such issue, multiplied by the
Series Conversion Price in effect immediately prior to such issue,
plus (ii) the consideration, if any, received by the Company upon
such issue, by (b) the Common Stock Equivalent of the number of
shares of capital stock outstanding immediately after such issue.
For the purpose of any adjustment of the Series Conversion Price pursuant
to clause (i) or clause (ii) of this Section 5(f), the following provisions
shall be applicable:
(iii) Cash. In the case of the issuance of Capital Stock for
cash, the amount of the consideration received by the Company shall
be deemed to be the aggregate cash proceeds received by the Company
for such Capital Stock before deducting therefrom any discounts,
commissions, taxes or other expenses allowed, paid or incurred by
the Company for any underwriting or otherwise in connection with the
issuance and sale thereof.
(iv) Consideration Other than Cash. In the case of the
issuance of Capital Stock (otherwise than upon the conversion of
shares of capital stock or other securities of the Company) for a
consideration in whole or in part other than cash, including
securities acquired in exchange therefor (other than securities by
their terms so exchangeable), the consideration other than cash
shall be deemed to be the fair market value thereof as determined by
the Board of Directors in good faith, irrespective of any accounting
treatment; provided, however, that such fair market value as
determined by the Board of Directors shall not exceed the aggregate
Current Market Price of the shares of Capital Stock being issued in
exchange therefor as of the date the Board of Directors authorizes
the issuance of such shares.
7
<PAGE>
(v) Options and Convertible Securities. In the case of the
issuance at any time after the Series Issue Date of (x) options,
warrants or other rights to purchase or acquire Capital Stock
(whether or not at the time exercisable), (y) securities by their
terms so convertible into or exchageable for Capital Stock (whether
or not at the time so convertible or exercisable) or (z) options,
warrants or rights to purchase such convertible or exchangeable
securities (whether or not at the time exercisable):
a. the aggregate maximum number of shares of Capital
Stock deliverable upon exercise of such options, warrants or
other rights to purchase or acquire Capital Stock shall be
deemed to have been issued at the time such options, warrants
or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in clauses
(iii) and (iv) above), if any, received by the Company upon
the issuance of such options, warrants or rights for the
Capital Stock covered thereby (the amount of the purchase
price in each case to be determined in the manner provided in
clauses (iii) and (iv) above);
b. the aggregate maximum number of shares of Capital
Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities, or upon the
exercise of options, warrants or other rights to purchase or
acquire such convertible or exchangeable securities and the
subsequent conversion or exchange thereof, shall be deemed to
have been issued at the time such securities were issued or
such options, warrants or rights were issued and for a
consideration equal to the consideration, if any, received by
the Company for any such securities and related options,
warrants or rights (excluding any cash received on account of
accrued interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by the
Company upon the conversion or exchange of such securities and
the exercise of any related options, warrants or rights (the
consideration in each case to be determined in the manner
provided in clauses (iii) and (iv) above);
c. on any change in the number of shares of Capital
Stock deliverable upon exercise of any such options, warrants
or rights or conversion of or exchange for such convertible or
exchageable securities or any change in the consideration to
be received by the Company upon such exercise, conversion or
exchange (other than under or by reason of provisions designed
to protect agaisnt dilution), the Series Conversion Price as
then in effect shall forthwith be readjusted to such Series
Conversion Price as would have been obtained had an adjustment
been made upon the issuance of such options, warrants or
rights or securities on the basis of such change; provided,
however, there shall be no adjustment pursuant to this clause
(c) to the extent that any of such options, warrants, rights
or securities shall have been exercised, converted or
exchanges, as the case may be, prior to such change.
8
<PAGE>
d. on the expiration or cancellation of one or more of
such options, warrants or rights, or the termination of the
right to convert or exchange one or more of such convertible
or exchageable securities, if the Series Conversion Price
shall have been adjusted upon the issuance thereof and any of
such options, warrants, rights or securities shall not have
been exercised, converted or exchanged, as the case may be,
prior to such expiration or cancellation, the Series
Conversion Price shall forthwith be readjusted to such Series
Conversion Price as would have been obtained had an adjustment
been made upon only the issuance of such options, warrants,
rights or securities on the basis of the issuance of only the
number of shares of Capital Stock that would actually have
been issued upon the exercise of such options, warrants or
rights, or upon the conversion or exchange of such securities;
and
e. if the Series Conversion Price has been adjusted upon
the issuance of any such options, warrants, rights or
securities, no further adjustment of the Series Conversion
Price shall be made for the actual issuance of Capital Stock
upon the exercise, conversion or exchange thereof; provided,
however, that, except as provided in clause (d) of Section
5(f)(v), no increase in the Series Conversion Price shall be
made pursuant to this clause (e).
(vi) Excluded Stock. "Excluded Stock" shall mean: (1) shares
of Common Stock, any other series of Common Shares or any series of
Preferred Stock to be issued pursuant to the Company's 1989 Stock
Option Plan, 1993 Stock Option Plan, 1993 Executive Stock Option
Plan or any other stock options or warrants granted or sold to
employees, consultants, advisors or directors of the Company
relating to the provision of services to the Company; (2) shares of
Common Stock, any other series of Common Shares or any series of
Preferred Shares issued by the Company under provisions of the
Certificate of Incorporation as from time to time in effect or by
virtue of agreements designed to protect against dilution; and (3)
shares of Common Stock, any other series of Common Shares or any
series of Preferred Shares issued or reserved for issuance by the
Company upon conversion of any series of Preferred Shares.
(vii) Stock Dividends. If the number of shares of Common Stock
outstanding at any time after the Series Issue Date is increased by
a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then immediately
after the record date fixed for the determination of holders of
Common Stock entitled to receive such stock dividend or the
effective date of such subdivision or split-up, as the case may be,
the Series Conversion Prices shall be appropriately reduced so that
the holder of any shares of Series C Preferred Stock thereafter
converted shall be entitled to receive the number of shares of
Common Stock that such holder would have owned immediately following
such action had such shares of Series C Preferred Stock have been
converted immediately prior thereto.
(viii) Combination of Stock. If the number of shares of Common
Stock outstanding at any time after the Series Issue Date is
decreased by a combination
9
<PAGE>
of the outstanding shares of Common Stock, then immediately after
the effective date of such combination, the Series Conversion Price
shall be appropriately increased so that the holder of any shares of
Series C Preferred Stock thereafter converted shall be entitled to
receive the number of shares of Common Stock that such holder would
have owned immediately following such action had such shares of
Series C Preferred Stock been converted immediately prior thereto.
(ix) Reclassification. In the event of a reclassification of
the Common Stock, each share of Series C Preferred Stock shall,
after such reclassification, be convertible into the number and type
of shares of capital stock or other securities to which the Common
Stock issuable (at the time of such reclassification) upon
conversion of such shares of Series C Preferred Stock would have
been entitled upon such reclassification; and, in such event, if
necessary, the provisions set forth herein with respect to the
rights and interests thereafter of the holders of Series C Preferred
Stock shall be appropriately adjusted so as to be applicable, as
nearly as may reasonably be, to any shares of stock or other
securities thereafter deliverable upon the conversion of such Series
C Preferred Stock. The subdivision or combination of Common Stock
issuable upon conversion of Series C Preferred Stock at any time
outstanding into a greater or lesser number of shares of Common
Stock (whether with or without par value) shall not be deemed to be
a reclassification of the Common Stock of the Company for the
purposes of this clause (ix).
(x) Rounding of Calculations; Minimum Adjustment. All
calculations under this Section 5(f) shall be made to the nearest
cent or to the nearest one one-hundredth (1/100th) of a share, as
the case may be. Any provision of this Section 5 to the contrary
notwithstanding, no adjustment to any Series Conversion Price shall
be made if the amount shall be carried forward and an adjustment
with respect thereto shall be made at the time of and together with
any subsequent adjustment which, together with such amount and any
other amount or amounts so carried forward, shall aggregate $.01 or
more.
(xi) Timing of Issuance of Additional Common Stock Upon
Certain Adjustments. In any case in which the provisions of this
Section 5(f) shall require that an adjustment shall become effective
immediately after a record date for an event, the Company may defer
until the occurrence of such event (1) issuing to the holder of any
share of Series C Preferred Stock converted after such record date
and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the
adjustment required by such event over and above the shares of
Common Stock issuable upon such conversion before giving effect to
such adjustment and (2) paying to such holder any amount of cash in
lieu of a fractional share of Common Stock pursuant to Section 5(e);
provided, however, that the Company upon request shall deliver to
such holder a due bill or other appropriate instrument evidencing
such holder's right to receive such additional shares, and such
cash, upon the occurrence of the event requiring such adjustment.
10
<PAGE>
(xii) Prohibition of Action Resulting in Minimum Conversion
Price. The Company shall not take any action or the kind covered by
this Section 5(f) that would cause the Series Conversion Price to
fall below the greater of $.01 and the par value of the Common
Stock.
(g) Current Market Price. The "Current Market Price" at any date
shall mean the price per share of the Capital Stock on such date
determined by the Board of Directors as provided below. The Current Market
Price shall be the average of the daily closing price per share of such
Capital Stock for thirty (30) consecutive business days ending no more
than fifteen (15) business days before the day in question (as adjusted
for any stock dividend, split, combination or reclassification that took
effect during such 30-day period). The closing price for each day shall be
the last reported sales price regular way or, in the case no such reported
sales take place on such day, the average of the last reported bid and
asked price regular way, in either case, on the principal national
securities exchange on which such Capital Stock is listed or admitted to
trading, unless such principal national securities exchange is a regional
securities exchange and such Capital Stock is also quoted on the Nasdaq
Stock Market, or if not listed or admitted to trading on a national
securities exchange or if such principal securities exchange is a regional
securities exchange and such Capital Stock is also quoted on the Nasdaq
Stock Market, or, if not so quoted, as reported by the National Quotation
Bureau, Inc.; provided, however, that if such Capital Stock is not traded
in such manner that any of the quotations referred to above is available
for the period required hereunder, the Current Market Price per share of
such Capital Stock shall be deemed to be the fair market value as
determined by the Board of Directors in good faith, irrespective of any
accounting treatment.
(h) Statement Regarding Adjustments. Whenever any Series Conversion
Price shall be adjusted as provided in Section 5(f), the Company shall
within a reasonable time file, at the office of any transfer agent for
Series C Preferred Stock affected and at the principal office of the
Company, a statement showing in detail the facts requiring such adjustment
and the Series Conversion Price that shall be in effect after such
adjustment, and the Company shall also cause a copy of such statement to
be sent by mail, first-class postage prepaid, to each holder of Series C
Preferred Stock at its address appearing on the Company's records. Where
appropriate, such copy may be given in advance and may be included as part
of a notice required to be mailed under the provisions of Section 5(i).
(i) Notice to Holders. In the event the Company shall, propose to
take any action of the type described in clause (i) or (ii) of Section
5(f) (but only if the action of the type described in clause (i) would
result in an adjustment in a Series Conversion Price) or clause (v),
(vii), (viii) or (ix) of Section 5(f), the Company shall give notice to
each holder of shares of the Series C Preferred Stock affected, in the
manner set forth in Section 5(h), which notice shall specify the record
date, of any, with respect to any such action and the approximate date on
which such action is to take place. Such notice shall also set forth such
facts with respect thereto as shall be reasonably necessary to indicate
the effect of such action (to the extent such effect may be known at the
date of such notice) on the Series Conversion Price and the number, kind
or class of shares or other securities or property which shall be
deliverable or puchaseable upon the occurrence
11
<PAGE>
of such action or deliverable upon conversion of shares of Series C
Preferred Stock. In the case of any such action which would require the
fixing of a record date, such notice shall be given at least twenty (20)
calendar days prior to the date so fixed, and in the case of all other
action, such notice shall be given at least thirty (30) calendar days
prior to the taking of such proposed action. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of any
such action.
(j) Treasury Stock. For the purposes of this Section 5, the sale or
other disposition (other than sales or dispositions to employees,
consultants, advisors or directors of the Company in connection with the
provision of services to the Company) of any capital stock of the Company
theretofore held in its treasury shall be deemed to be an issuance
thereof.
(k) Costs. The Company shall pay all documentary, stamp, transfer or
other transactional taxes attributable to the issuance or delivery of
shares of Common Stock of the Company upon conversion of any shares of
Series C Preferred Stock; provided, however, that the Company shall not be
required to pay any taxes that may be payable in respect of any transfer
involved in the issuance or delivery of any certificate for such shares in
a name other than that of the holder of the Series C Preferred Stock in
respect of which such shares are being issued.
(l) Reservation of Shares. The Company shall reserve at all times so
long as any shares of Series C Preferred Stock remain outstanding out of
its treasury stock or its authorized but unissued shares of Common Stock,
or both, solely for the purpose of effecting the conversion of the shares
of Series C Preferred Stock, sufficient shares of Common Stock to provide
for the conversion of all outstanding shares of Series C Preferred Stock.
(m) Approvals. If any shares of Common Stock to be reserved for the
purpose of conversion of shares of Series C Preferred Stock require
registration with or approval of any governmental authority under any
Federal of state law before such shares may be validly issued or delivered
upon conversion, then the Company will in good faith and as expeditiously
as possible endeavor to secure such registration or approval, as the case
may be. If, and so long as, any Common Stock into which the shares of
Series C Preferred Stock are then convertible is listed in any national
securities exchange, the Company will, if permitted by the rules of such
exhcange, list and keep listed on such exchange, upon official notice of
issuance, all shares of such Common Stock issuable upon conversion.
(n) Valid Issuance. All shares of Common Stock that may be issued
upon conversion of the shares of Series C Preferred Stock will upon
issuance by the Company be duly and validly issued, fully-paid and
nonassessable and free from all taxes, liens and charges with respect to
the issuance thereof and the Company shall take no action that will cause
a contrary result (including, without limitation, any action which would
cause the Series Conversion Price to be less than th par value, if any, of
the Common Stock).
12
<PAGE>
Section 6. Voting Rights.
(a) General. Except as may be otherwise required by law or by the
provisions of this Section 6, the holders of Series C Preferred Stock
shall vote together with the holders of Preferred Stock and Common Stock
as a single class on every matter coming before any meeting of the
shareholders or otherwise to be acted upon by the shareholders. At every
meeting of the shareholders of the Company, every holder of Series C
Preferred Stock shall be entitled, for each such share standing in its
name on the transfer books of the Company, to a number of votes equal to
the number of votes equal to the number of votes that could be cast by
such holder if it held the Common Stock Equivalent of such share of Series
C Preferred Stock on the record date for such vote.
(b) Changes to Series C Preferred Stock. Without the affirmative
vote of the holders of at least a majority of the shares of Series C
Preferred Stock at the time outstanding, the Company may not effect any
change in the powers, preferences, privileges, rights, qualifications,
limitations or restrictions of the Series C Preferred Stock; provided,
however, and without expanding the foregoing limited class voting rights,
no such separate class vote shall be required of the Series C Preferred
Stock in order to amend the Certificate of Incorporation of the Company to
authorize any new class of stock, whether such class is senior, on a
parity with, or junior to the Series C Preferred Stock in dividends,
liquidation, voting rights or otherwise. Such consents shall either be
given in writing or by vote at a meeting called for that purpose at which
the holders of the Series C Preferred Stock shall vote as a class.
(c) Other Special Voting Rights of the Series C Preferred Stock. A
separate affirmative vote of the holders of at least a majority of the
shares of the Series C Preferred Stock outstanding and voting as a single
class shall be required for any additional series of Common Shares or
Preferred Stock to be issued if:
(i) Such series has senior rights to the Series C Preferred
Stock upon any Liquidation of the Company, or
(ii) (x) Such series has equivalent rights to the Series C
Preferred Stock upon any Liquidation of the Company; and (y) the
aggregate amount received by the Company in respect of the issuance
or sale of shares of Capital Stock having equivalent rights to the
Series C Preferred Stock upon any Liquidation of the Company from
and after the Series Issue Date through and inclusive of the
additional series of Common Shares or Preferred Shares proposed to
be issued exceeds $20,000,000.
(d) Special Redemption Rights. If in any case of a separate class
vote of the Series C Preferred Stock is required under clause (i) or (ii)
of Section 6(c) above a majority of the outstanding shares of the Series C
Preferred Stock are not voted in favor of such issuance of stock; but the
holders of majority of the then issued and outstanding Common Stock voting
as a separate class vote in favor of such issuance then the Company shall
have the right to redeem all but not less than all of the outstanding
shares of the Series C Preferred Stock at the following per share price
(subject to adjustment for stock dividends, splits, combinations, etc.)
(the "Redemption Price"):
If Redemption Date occurs:
13
<PAGE>
on or after and prior to Redemption Price
----------- ------------ ----------------
July 1, 1995 June 30, 1996 $7.02
July 1, 1996 June 30, 1997 $7.58
July 1, 1997 June 30, 1998 $8.19
After July 1, 1998 $8.84
The Company's redemption right may be exercised at any time within
12 months after the record date for the special class vote provided in
clause (i) or (ii) of Section 6(c) by giving written notice to the holder
of record of each share of Series C Preferred Stock at least 30 days prior
to the date on which the redemption is to occur ("Redemption Date"). On
the Redemption Date the Company shall tender the Redemption Price to each
record holder of Preferred Stock against delivery of stock certificates
for the Series C Preferred Stock being redeemed; provided that until the
close of business on the date immediately preceding the Redemption Date
each holder of Series C Preferred Stock shall be entitled to convert such
stock to Common Stock pursuant to the terms hereof.
Notwithstanding the provision of Section 6(c), in order to permit
the Company to issue securities to provide in whole or in part funds to
redeem the Series C Preferred Stock as contemplated hereby, the
Certificate of Incorporation may be amended and/or additional series of
Common Shares or Preferred Shares may be issued solely upon the requisite
vote of other series and classes of Common Shares and Preferred Shares
(other than Series C Preferred Stock) provided the Company uses all or a
portion of the proceeds to redeem all outstanding Series C Preferred
Stock.
Section 7. Right of Conversion upon Merger or Consolidation. In case of
any consolidation or merger of the Company with any other corporation (other
than a consolidation or merger in which the Company is the continuing or
surviving corporation and which does not result in any change in the outstanding
Common Stock), or in case of any sale or transfer of all or substantially all
the assets of the Company, or in case of a binding share exchange in which all
the outstanding shares of the Common Stock are changed into cash, stock or other
securities or property, the holder of each share of Series C Preferred Stock
shall at any time after such consolidation, merger, sale or transfer or binding
share exchange have the right to convert such share of Preferred Stock into the
kind and amount of shares of stock or other securities or property or cash, as
the case may be, which such holder would have been entitled to receive upon such
consolidation, merger, sale, or transfer or binding share exchange if he had
held the Common Stock issuable upon the conversion of such share of Series C
Preferred Stock immediately prior to such consolidation, merger, sale, or
transfer or binding share exchange.
Section 8. Retirement of Shares. Shares of Series C Preferred Stock that
have been issued and have been redeemed, converted, repurchased or reacquired in
any manner by the Company shall be canceled and shall not be reissued.
Section 9. Certain Rights of Participation in Stock Issuances. In the
event that the Company shall issue any equity securities or securities
exercisable for or convertible into equity securities of the Company
(hereinafter "Equity Securities"), each holder of shares of Series
14
<PAGE>
C Preferred Stock shall have the right to purchase such amount of such Equity
Securities that will enable such holder to retain the percentage ownership
interest (in terms of Common Stock or Common Stock Equivalents) in the Company
that such holder had immediately prior to such issuance of Equity Securities. No
later than twenty (20) days after the issuance of any Equity Securities the
Company shall give each record holder of Series C Preferred Stock written notice
(the "Notice") of the issuance or proposed issuance of such Equity Securities
and shall offer to sell to each such holder the amount of Equity Securities
described in the preceding sentence on the same terms and conditions that such
Equity Securities were or are proposed to be issued. Each such holder shall have
a period of twenty (20) days after the date of the Notice to purchase such
amount of Equity Securities on such terms and conditions. The rights of
participation provided in this Section 9 shall not apply to Equity Securities
issued under the provisions of this Section, upon conversion or exercise of any
Equity Securities issued under the provisions of this subdivision of any Equity
Securities, in consideration in whole or in part for the acquisition (whether by
merger or otherwise) by the Company or any of its subsidiaries of all or
substantially all of the stock or assets of any other entity, in connection with
any transaction (e.g. a joint venture, technology licensing, distribution or
other arrangement) with respect to which the Board of Directors has made a food
faith determination that the primary purpose of such transaction is the
advancement of the business interests of the Company as opposed to the raising
of funds, pursuant to a firm commitment underwritten public offering, pursuant
to the grant of options or warrants to and the exercise of the same to purchase
Equity Securities by employees, consultants, advisors or directors of the
Company relating to the providing of services to the Company or the issuance of
treasury shares acquired from employees, consultants, advisors or directors,
upon the exercise of any right which was not itself in violation of the terms if
this Section 9, the issuance of securities pursuant to anti-dilution,
preemptive, participation or similar rights granted herein or by contract or the
issuance of Equity Securities all or a portion of the proceeds of which will be
used in redeeming Series C Preferred Stock as provided in Section 6(d) hereof.
The rights of the holders of Series C Preferred Stock under this Section may be
waived by a vote or consent of persons holding a majority of the Common Stock
Equivalents at the time represented by the issued and outstanding shares of
Series C Preferred Stock.
15
<PAGE>
IN WITNESS WHEREOF, this Certificate has been signed by Paul J. Maddon and
attested to by Robert A. McKinney of the Company, all as of the 8th day of
December, 1995.
PROGENICS PHARMACEUTICALS, INC.
By: /s/ Paul J. Maddon
--------------------------
Name: Paul J. Maddon
Title: President
Attest:
By: /s/ Robert A. McKinney
--------------------------
Name: Robert A. McKinney
Title: Assistant Secretary
16
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * * *
Progenics Pharmaceuticals, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation,
resolutions were duly adopted proposing and declaring advisable the following
amendments to the Certificate of Incorporation of the Corporation:
Automatic Conversion of Series B Preferred Stock
RESOLVED: That, Article Fourth, Paragraph C, Section 5(b) of the
Certificate of Incorporation shall be amended to read as
follows:
"(b) Automatic Conversion. Each outstanding share of a series
of Preferred Stock shall automatically be converted,
without any further act of the Corporation or its
shareholders, into fully paid and nonassessable shares
of Common Stock at the Applicable Series Conversion
Price then in effect on the earlier to occur of (a) the
closing of a public offering by the Corporation pursuant
to an effective registration statement under the
Securities Act of 1933, as amended, covering the
offering and sale of any shares of any series of Common
Shares by the Corporation for the
<PAGE>
account of the Corporation in which (i) the aggregate
gross proceeds (before deduction of any underwriting
discount, commission or expense) received by the
Corporation equal or exceed $5,000,000 and (ii) the
price per share of such Common Shares equals or exceeds
200% of the Applicable Series Conversion Price in effect
immediately prior to the closing of the sale by the
Corporation of such shares in the case of Series A
Preferred Stock and 160% of the Applicable Series
Conversion Price in effect immediately prior to the
closing of the sale by the Corporation of such shares in
the case of Series B Preferred Stock, and (b)(i) in the
case of the Series A Preferred Stock the date as of
which there shall have been converted under subparagraph
5(a) a cumulative of 1,145,001 shares of Series A
Preferred Stock and (ii) in the case of the Series B
Preferred Stock the date as of which there shall have
been converted under subparagraph 5(a) a cumulative
aggregate number of shares of Series B Preferred Stock
as follows: (x) prior to January 31, 1994, a number of
shares equal to a majority of the issued and outstanding
shares of Series B Preferred Stock as of February 28,
1993, and (y) from and after February 1, 1994, a number
of shares equal to a majority of the issued and
outstanding shares of Series B Preferred Stock as of
February 1, 1994.
Automatic Conversion of Series C Preferred Stock
RESOLVED: That, Section 5(b) of the Certificate of Designation of
Series C Preferred Stock shall be amended to read as
follows:
"(b) Automatic Conversion. Each outstanding share of Series C
Preferred Stock shall be converted automatically,
without any further act of the Company or its
shareholders, into fully-paid and nonassessable shares
of Common Stock at the Series Conversion Price then in
effect on the earlier to occur of (a) the closing of a
public offering by the Company pursuant to an effective
registration statement under the
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Securities Act of 1933, as amended, covering the
offering and sale of any shares of any series of Common
Shares by the Company for the account of the Company in
which (i) the aggregate gross proceeds (before deduction
of any underwriting discount, commission or expense)
received by the Company equal or exceed $5,000,000 and
(ii) the price per share of such Common Shares equals or
exceeds 128% of the Series Conversion Price in effect
immediately prior to the closing of the sale of such
shares by the Company, and (b) the date as of which
there shall have been converted under Section 5(a) a
cumulative aggregate number of shares of Series C
Preferred Stock equal to a majority of the issued and
outstanding shares of Series C Preferred Stock as of
December 31, 1995."
Fractional Shares - Series A and Series B Preferred Stock
RESOLVED: That, Article Fourth, Paragraph C, Section 5(e) of the
Corporation's Certificate of Incorporation shall be
amended to read as follows:
"(e) Fractional Shares. No fractional shares of Common Stock
or scrip shall be issued upon conversion of shares of
Preferred Stock. If more than one share of Preferred
Stock shall be surrendered for conversion at any one
time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares
of Preferred Stock so surrendered. Instead of any
fractional shares of Common Stock which would otherwise
be issuable upon conversion of any shares of Preferred
Stock, the Corporation shall round up the number of
shares of Common Stock to be issued upon conversion."
Fractional Shares - Series C Preferred Stock
RESOLVED: That, Section 5(e) of the Corporation's Certificate of
Designation shall be amended to read as follows:
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"(e) Fractional Shares. No fractional shares of Common Stock
or scrip shall be issued upon conversion of shares of
Series C Preferred Stock. If more than one share of
Series C Preferred Stock shall be surrendered for
conversion at any one time by the same holder, the
number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the
aggregate number of shares of Series C Preferred Stock
so surrendered. Instead of any fractional shares of
Common Stock that would otherwise be issuable upon
conversion of any shares of Series C Preferred Stock,
the Company shall round up the number of shares of
Common Stock to be issued upon conversion."
Par Value
RESOLVED: That, in the judgement of the Board of Directors of this
Corporation, it is deemed advisable to amend the
Certificate of Incorporation of the Corporation by
changing paragraph A of the Article thereof numbered
"Fourth" so that, as amended, paragraph A of Article
Fourth reads as follows:
"FOURTH:
(A) TOTAL NUMBER OF SHARES OF STOCK. The total number of shares of
stock of all classes that the Corporation shall have authority
to issue is sixty million (60,000,000) shares. The authorized
capital stock is divided into twenty million (20,000,000)
Preferred Shares of the par value $.001 each and forty million
(40,000,000) Common Shares of the par value of $.0013 each."
Stock Split
RESOLVED: That, at the time of this amendment to the Certificate
of Incorporation, each four issued and outstanding
shares of Common Stock of the Corporation shall be
reclassified as and combined into three shares of
validly issued, fully paid and nonassessable Common
Stock of the Corporation. No scrip or fractional
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shares shall be issued by reason of this amendment. In
lieu of fractional shares, the Corporation shall round
up the number of shares of Common Stock to be issued to
the next whole number of shares of Common Stock as a
result of the stock split.
SECOND: That in lieu of a meeting and vote of stockholders, the holders of
a majority of the issued and outstanding shares of each class of the capital
stock of the Corporation required to approve such amendments have given their
written consent to such amendments in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware and written notice
of the adoption of the amendments has been given as provided in Section 228 to
every stockholder entitled to receive notice.
THIRD: That the aforesaid amendments were duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation Law
of the State of Delaware.
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IN WITNESS WHEREOF, the Certificate of Amendment of Certificate of
Incorporation has been signed by Paul J. Maddon and attested to by Robert A.
McKinney of the Corporation, as of the 28th day of October, 1996.
PROGENICS PHARMACEUTICALS, INC.
By:
/s/ Paul J. Maddon
---------------------------------
Name: Paul J. Maddon, M.D., Ph.D
Title: President
Attest:
By:
/s/ Robert A. McKinney
- --------------------------
Name: Robert A. McKinney
Title: Assistant Secretary
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Exhibit 10.5
PROGENICS PHARMACEUTICALS, INC.
AMENDED 1996 STOCK INCENTIVE PLAN
1. PURPOSE OF THE PLAN
The purpose of the Progenics Pharmaceuticals, Inc. Amended 1996 Stock
Incentive Plan is to promote the interests of the Company and its shareholders
by strengthening the Company's ability to attract, motivate and retain
employees, directors, advisors and consultants of the Company, and to provide a
means to encourage stock ownership and a proprietary interest in the Company by
the employees, directors consultants and advisors to the Company upon whose
judgment, initiative, and efforts the financial success and growth of the
business of the Company largely depend.
2. DEFINITIONS
(a) "Award" means an award of an Option, Restricted Stock, Stock
Appreciation Right, Performance Award or Phantom Stock granted under the Plan.
(b) "Award Agreement" means an agreement entered into between the Company
and a Participant setting forth the terms and conditions of an Award granted to
a Participant.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Compensation Committee of the Board, or such
other members of the Board appointed by the Board to administer the Plan from
time to time.
(f) "Common Stock" means the $0.0013 par value common stock of the
Company.
(g) "Company" means Progenics Pharmaceuticals, Inc., a Delaware
corporation.
(h) "Date of Grant" means the date on which an Award under the Plan is made
by the Committee, or such later date as the Committee may specify that the Award
becomes effective.
(i) "Disability" means a "permanent and total disability" within the
meaning of Section 22(e)(3) of the Code.
(j) "Eligible Person" means an Employee, director, advisor or consultant
of the Company or any of its Subsidiaries, including all non employee directors
of the Company.
(k) "Employee" means any person who is an employee of the Company or of
any of its Subsidiaries.
(l) "Fair Market Value" means the last reported sales prices of the Common
Stock on the Nasdaq National Market on the date as of which fair market value is
to be determined or, in the absence of any reported sales of Common Stock on
such date, on the first preceding date on which any such sale shall have been
reported. If Common Stock is not listed on the Nasdaq National Market on the
date as of which fair market value is to be determined, the Committee shall
determine in good faith the fair market value in whatever manner it considers
appropriate.
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(m) "Incentive Stock Option" means an option to purchase Common Stock that
is intended to qualify under section 422 of the Code and the Treasury
Regulations thereunder.
(n) "Nonqualified Stock Option" means an option to purchase Common Stock
that is not an Incentive Stock Option.
(o) "Option" means an Incentive Stock Option or a Nonqualified Stock
Option granted under Section 6 hereof.
(p) "Participant" means any Eligible Person who has received an Award
under the Plan.
(q) "Phantom Stock" means an Award under Section 10 hereof entitling a
Participant to a payment at the end of a vesting period of a unit value based on
the Fair Market Value of a share of Common Stock.
(r) "Plan" means the Amended 1996 Stock Incentive Plan as set forth
herein, as it may be amended from time to time.
(s) "Performance Award" means an Award made under Section 9 hereof
entitling a Participant to a payment based on the value of Common Stock (a
"Performance Share") or based on specified dollar units (a "Performance Unit")
at the end of a performance period if certain conditions as may be established
by the Committee are satisfied.
(t) "Restricted Stock" means an Award under Section 8 hereof entitling a
Participant to shares of Common Stock that are nontransferable and subject to
forfeiture until specific conditions established by the Committee are satisfied.
(u) "Stock Appreciation Right" or "SAR" means an Award under Section 7
hereof entitling a Participant to receive an amount, representing the difference
between the base price per share of the right and the Fair Market Value of a
share of Common Stock on the date of exercise.
(v) "Subsidiary" means any affiliate of the Company, as determined by the
Committee from time to time; PROVIDED, HOWEVER that with respect to Incentive
Stock Options, "Subsidiary" means a "subsidiary corporation" within the meaning
of section 424(f) of the Code.
3. SHARES OF COMMON STOCK SUBJECT TO THE PLAN
3.1 NUMBER OF SHARES. Subject to the following provisions of this Section
3, the aggregate number of shares of Common Stock that may be issued or
transferred or exercised pursuant to Awards under the Plan is 1,000,000 shares
of Common Stock (750,000 shares after the Company's three-for-four reverse stock
split). The shares of Common Stock to be delivered under the Plan will be made
available, at the discretion of the Board or the Committee, either from
authorized but unissued shares of Common Stock or from shares of Common Stock
held in the Company's treasury. If any share of Common Stock that is the
subject of an Award is not issued or transferred and ceases to be issuable or
transferable for any reason, such share of Common Stock will no longer be
charged against such maximum share limitation and may again be made subject to
Awards under the Plan.
3.2 ADJUSTMENTS. If there shall occur any recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
distribution with respect to the shares of Common Stock, or any similar
corporate transaction or event in respect of the Common Stock, then the
Committee shall, in the manner and to the extent that it deems appropriate and
equitable to the Participants and consistent with the terms of this Plan, cause
a proportionate adjustment to be made in (i) the maximum number and kind of
shares provided in Section 3.1 hereof, (ii) the number and kind of shares,
units, or other
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securities subject to the then outstanding Awards, and (iii) the price for each
share or unit or other right subject to then outstanding Awards without change
in the aggregate purchase price or value as to which such Awards remain
exercisable or subject to restrictions; (iv) the performance targets or goals
appropriate to any other outstanding Performance Awards, or (v) any other terms
that are affected by the event.
4. ADMINISTRATION OF THE PLAN
4.1 COMMITTEE MEMBERS. The Plan will be administered by the Committee
which, to the extent deemed necessary or appropriate by the Board, will consist
of two or more persons who satisfy the requirements for a "nonemployee director"
under Rule 16b-3 promulgated under the Securities Exchange Act of 1934. The
Committee has and may exercise such powers and authority of the Board as may be
necessary or appropriate for the Committee to carry out its functions as
described in the Plan. No member of the Board nor the Committee will be liable
for any action or determination made in good faith by the Board or the Committee
with respect to the Plan or any Award under it.
4.2 DISCRETIONARY AUTHORITY. Subject to the express limitation of the
Plan, the Committee has authority in its discretion to determine the Eligible
Persons to whom, and the time or times at which, Awards may be granted, the
number of shares, units or other rights subject to each Award, the exercise,
base or purchase price of an Award (if any), the time or times at which an Award
will become vested, exercisable or payable and the duration of the Award. The
Committee also has discretionary authority to interpret the Plan, to make all
factual determinations under the Plan, and to determine the terms and provisions
of the respective Award Agreements and to make all other determinations
necessary or advisable for Plan administration. The Committee has authority to
prescribe, amend, and rescind rules and regulations relating to the Plan. All
interpretations, determinations, and actions by the Committee will be final,
conclusive, and binding upon all parties.
4.3 CHANGES TO AWARDS. The Committee shall have the authority to effect,
at any time and from time to time, with the consent of the affected
Participants, (i) the cancellation of any or all outstanding Awards and the
grant in substitution therefor of new Awards covering the same or different
numbers of shares of Common Stock and having an exercise or base price which may
be the same as or different than the exercise or base price of the cancelled
Awards or (ii) the amendment of the terms of any and all outstanding Awards.
The Committee may in its discretion accelerate the vesting or exercisability of
an Award at any time.
5. ELIGIBILITY AND AWARDS
All Eligible Persons are eligible to be designated by the Committee to
receive an Award under the Plan. The Committee has authority, in its sole
discretion, to determine and designate from time to time those Eligible Persons
who are to be granted Awards, and the type and amount of Award to be granted.
Each Award will be evidenced by an Award Agreement as described in Section 11
hereof between the Company and the Participant that may include any terms and
conditions consistent with the Plan as the Committee may determine.
6. STOCK OPTIONS
6.1 GRANT OF OPTION; EXERCISE PRICE. An Option may be granted to any
Eligible Person selected by the Committee; PROVIDED, HOWEVER, that only
Employees meeting the requirements of Treasury Regulation Section 1.421-7(h)
shall be eligible for Awards of Incentive Stock Options. Each Option shall be
designated, at the discretion of the Committee, as an Incentive Stock Option or
a Nonqualified Stock Option. The exercise price of the Option shall be
determined by the Committee; PROVIDED, HOWEVER, that the exercise price of an
Incentive Stock Option shall not be less than 100 percent of the Fair Market
Value of the Common Stock subject to the Option on the Date of Grant.
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6.2 VESTING; TERM OF OPTION. The Committee, in its sole discretion, shall
prescribe in the Award Agreement for a Participant the time or times at which,
or the conditions upon which, an Option or portion thereof shall become vested
and exercisable, and may accelerate the exercisability of any Option at any
time. An Option may become vested and exercisable upon a Participant's
retirement, death, Disability or other event to the extent provided in an Award
Agreement. The period during which a vested Option may be exercised shall be
ten years from the Date of Grant, unless a shorter exercise period is specified
by the Committee in an Award Agreement.
6.3 OPTION EXERCISE; WITHHOLDING. An Option may be exercised in whole or
in part at any time, with respect to whole shares only, within the period
permitted for the exercise thereof, and shall be exercised by written notice of
intent to exercise the Option with respect to a specified number of shares
delivered to the Company at its principal office, and payment in full to the
Company at said office of the amount of the exercise price for the number of
shares of the Common Stock with respect to which the Option is then being
exercised. Payment of the exercise price shall be made (i) in cash or by cash
equivalent, (ii) at the discretion of the Committee, in Common Stock (not
subject to limitations on transfer) valued at the Fair Market Value of such
shares on the trading date immediately preceding the date of exercise or (iii)
at the discretion of the Committee, by a combination of such cash and such
Common Stock. In addition to and at the time of payment of the exercise price,
the Participant shall pay to the Company in cash or, at the discretion of the
Committee, in Common Stock the full amount of all applicable income tax and
employment tax amounts required to be withheld in connection with such exercise.
6.4 LIMITED TRANSFERABILITY. Solely to the extent permitted by the
Committee in an Award Agreement, a Nonqualified Stock Option (but not an
Incentive Stock Option) may be transferred to members of the Participant's
immediate family, charitable institutions, or trusts or partnerships whose
beneficiaries are any of the foregoing, and/or to such other persons or entities
as may be approved by the Committee, in each case subject to the condition that
the Committee be satisfied that such transfer is being made for estate or tax
planning purposes or for gratuitous or donative purposes, without consideration
(other than nominal consideration) being receive therefore.
6.5 ADDITIONAL RULES FOR INCENTIVE STOCK OPTIONS.
(a) ANNUAL LIMITS. No Incentive Stock Option shall be granted to a
Participant as a result of which the aggregate fair market value (determined as
of the Date of Grant) of the stock with respect to which incentive stock options
are exercisable for the first time in any calendar year under the Plan, and any
other stock option plans of the Company, any Subsidiary or any parent
corporation, would exceed $100,000, determined in accordance with section 422(d)
of the Code. This limitation shall be applied by taking options into account in
the order in which granted.
(b) TERMINATION OF EMPLOYMENT. Any Incentive Stock Option granted under
the Plan shall be subject to such limitations on the period of exercise
following termination of employment, including such special rules relating to
death and Disability, as shall be determined by the Committee to be consistent
with section 422 of the Code and Treasury Regulations thereunder and set forth
in the applicable Award Agreement.
(c) TEN-PERCENT OWNERS. Notwithstanding any other provisions of this Plan
to the contrary, in the case of an Incentive Stock Option granted to an Employee
who, at the time an Incentive Stock Options is granted, owns stock possessing
more than ten percent of the total combined voting power of all classes of stock
of the Company, its parent, if any, or any Subsidiary, as determined under
sections 422(b)(6) and 424(d) of the Code, (i) the period during which any such
Incentive Stock Option may be exercised shall not be greater than five years
from the Date of Grant and (ii) the exercise price of such Incentive Stock
Option shall not be less than 110 percent of the Fair Market Value of a share of
Common Stock on the Date of Grant.
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(d) DISQUALIFYING DISPOSITIONS. If shares of Common Stock acquired by
exercise of an Incentive Stock Option are disposed of within two years following
the Date of Grant or one year following the transfer of such shares to the
Participant upon exercise, the Participant shall, promptly following such
disposition, notify the Company in writing of the date and terms of such
disposition and provide such other information regarding the disposition as the
Committee may reasonably require.
(e) OTHER TERMS AND CONDITIONS; NONTRANSFERABILITY. Any Incentive Stock
Option granted hereunder shall contain such additional terms and conditions, not
inconsistent with the terms of this Plan, as are deemed necessary or desirable
by the Committee, which terms, together with the terms of this Plan, shall be
intended and interpreted to cause such Incentive Stock Option to qualify as an
"incentive stock option" under Section 422 of the Code. Such terms shall
include limitations on the period of exercise of the Incentive Stock Option
following termination of employment consistent with Section 422 of the Code. An
Incentive Stock Option shall by its terms be nontransferable otherwise than by
will or by the laws of descent and distribution, and shall be exercisable,
during the lifetime of a Participant only by such Participant.
7. STOCK APPRECIATION RIGHTS
7.1 GRANT OF SARS. A Stock Appreciation Right granted to a Participant is
an Award in the form of a right to receive, upon surrender of the right, but
without other payment, an amount based on appreciation in the value of the
Common Stock over a base price established for the Award, payable in cash,
Common Stock or such other form or combination of forms of payout, exercisable
at such time or times and upon conditions as may be approved by the Committee.
7.2 TANDEM SARS. A Stock Appreciation Right may be granted in connection
with an Option, either at the time of grant or at any time thereafter during the
term of the Option. An SAR granted in connection with an Option will entitle
the holder, upon exercise, to surrender such Option or any portion thereof to
the extent unexercised, with respect to the number of shares as to which such
SAR is exercised, and to receive payment of an amount computed as described
below. Such Option will, to the extent and when surrendered, cease to be
exercisable. An SAR granted in connection with an Option hereunder will be
exercisable at such time or times, and only to the extent, that a related Option
is exercisable, and will expire no later than the related Option expires. Upon
the exercise of an SAR granted in connection with an Option, the holder will be
entitled to receive payment of an amount determined by multiplying: (i) the
difference between the exercise price of a share of Common Stock specified in
the related Option and the Fair Market Value of a share of Common Stock on the
date of exercise of such SAR, by (ii) the number of shares as to which such SAR
will have been exercised.
7.3 FREESTANDING SARS. A Stock Appreciation Right may be granted without
relationship to an Option and, in such case, will be exercisable as determined
by the Committee, but in no event after 10 years from the Date of Grant. The
base price of an SAR granted without relationship to an Option shall be
determined by the Committee in its sole discretion. An SAR granted without
relationship to an Option will entitle the holder, upon exercise of the SAR, to
receive payment of an amount determined by multiplying: (i) the difference
between the base price of the SAR and the Fair Market Value of a share of Common
Stock on the date of exercise of such SAR, by (ii) the number of shares as to
which such SAR will have been exercised.
7.4 PAYMENT OF SARS. Payment of the amount determined under Section 7.2
or 7.3 hereof may be made, in the discretion of the Committee, in cash, in
shares of Common Stock valued at their Fair Market Value on the date of exercise
or in a combination of cash and shares of Common Stock.
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8. RESTRICTED STOCK
8.1 GRANTS OF RESTRICTED STOCK. An award of Restricted Stock to a
Participant represents shares of Common Stock that are issued subject to
restrictions on transfer and such other restrictions on incidents of ownership
and forfeiture conditions as the Committee may determine. The restrictions
imposed upon Restricted Stock will lapse in accordance with a schedule or other
conditions as determined by the Committee. The Committee may, in connection
with an award of Restricted Stock, require the payment of a specified purchase
price.
8.2 RESTRICTIONS. Shares of Restricted Stock may not be transferred,
assigned or subject to any encumbrance, pledge or charge until all applicable
restrictions are removed or expire or unless otherwise allowed by the
Committee. The Committee may require the Participant to enter into an escrow
agreement providing that the certificates representing Restricted Stock
granted or sold pursuant to the Plan will remain in the physical custody of
an escrow holder until all restrictions are removed or expire. Each
certificate representing Restricted Stock granted pursuant to the Plan will
bear a legend making appropriate reference to the restrictions imposed. The
Committee may impose such conditions on any shares of Restricted Stock as it
may deem advisable, including, without limitation, restrictions under the
Securities Act of 1933, as amended, under the requirements of any stock
exchange upon which such shares of the same class are then listed, and under
any blue sky or other securities laws applicable to such shares.
8.3 RIGHTS AS STOCKHOLDER. Subject to the foregoing provisions of this
Section 8 and the applicable Award Agreement, Section 8.1 hereof, the holder
will have all rights of a shareholder with respect to shares of Restricted Stock
granted to him or her, including the right to vote the shares and receive all
dividends and other distributions paid or made with respect thereto, unless the
Committee determines otherwise at the time the Restricted Stock is granted.
8.4 SECTION 83(B) ELECTION. If a Participant makes an election pursuant
to section 83(b) of the Code, the Participant shall be required to promptly file
a copy of such election with the Company.
9. PERFORMANCE AWARDS
9.1 GRANT OF PERFORMANCE AWARDS. The Committee may grant Performance
Awards, which shall be denominated on the Date of Grant either in shares of
Common Stock (Performance Shares) or in specified dollar units (Performance
Units). At the time of a Performance Award grant, the Committee shall
determine, in its sole discretion, one or more performance periods and
performance goals to be achieved during the applicable performance periods, as
well as such other restrictions and conditions as the Committee deems
appropriate. In the case of Performance Units, the Committee shall also
determine a target unit value or a range of unit values for each Award. No
performance period shall exceed ten years from the date of the grant. The
performance goals applicable to a Performance Award grant may be subject to such
later revisions as the Committee shall deem appropriate to reflect significant
unforeseen events such as changes in law, accounting practices or unusual or
nonrecurring items or occurrences.
9.2 PAYMENT OF PERFORMANCE AWARDS. At the end of the performance period,
the Committee shall determine the extent to which performance goals have been
attained or a degree of achievement between maximum and minimum levels in order
to establish the level of payment to be made, if any, and shall determine if
payment is to be made in the form of cash or Common Stock (valued at its Fair
Market Value at the time of payment) or a combination of cash and Common Stock.
In the case of Performance Shares, the Committee may provide that during a
performance period a Participant shall be paid with respect to each Performance
Share a cash amount in the same amount and at the same time as a dividend is
paid on a share of Common Stock.
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10. PHANTOM STOCK
10.1 GRANT OF PHANTOM STOCK. Phantom Stock is an Award to a Participant of
a number of hypothetical share units with respect to shares of Common Stock,
with an initial value based on the Fair Market Value of the Common Stock on the
Date of Grant. Phantom Stock shall be subject to such restrictions and
conditions as the Committee shall determine. On the Date of Grant, the
Committee shall determine, in its sole discretion, the vesting period of the
Phantom Stock and the maximum value of the Phantom Stock, if any. No vesting
period shall exceed 10 years from the date of the grant.
10.2 PAYMENT OF PHANTOM STOCK. At the end of the vesting period applicable
to Phantom Stock granted to a Participant, a cash amount equivalent in value to
the Fair Market Value of one share of Common Stock on the last day of the
vesting period, subject to any maximum value determined by the Committee at the
time of grant, shall be paid with respect to each such Phantom Stock unit to the
Participant. The Committee may provide that during the vesting period a
Participant shall be paid with respect to each Phantom Stock unit, cash amounts
in the same amount and at the same time as a dividend on a share of Common
Stock.
11. AWARD AGREEMENTS
11.1 FORM OF AGREEMENT. Each Award under this Plan shall be evidenced by
an Award Agreement in a form approved by the Committee setting forth the number
of shares of Common Stock, units or other rights (as applicable) subject to the
Award, the exercise, base or purchase price (if any) of the Award, the time or
times at which an Award will become vested, exercisable or payable, the duration
of the Award and, in the case of Performance Awards, the applicable performance
goals. The Award Agreement shall also set forth other material terms and
conditions applicable to the Award as determined by the Committee consistent
with the limitations of this Plan.
11.2 TERMINATION OF EMPLOYMENT. The Award Agreements may include
provisions describing the treatment of an Award in the event of the retirement,
disability, death or other termination of a Participant's employment with or
other services to the Company, including any provisions relating to the vesting,
exercisability, acceleration, forfeiture or cancellation of the Award in these
circumstances, including such provisions as required for Incentive Stock Options
pursuant to Section 6.4(b) thereof.
11.3 CONTRACT RIGHTS. Any obligation of the Company to any Participant
with respect to an Award shall be based solely upon contractual obligations
created by this Plan and an Award Agreement. No Award shall be enforceable
until the Award Agreement or a receipt has been signed by the Participant and on
behalf of the Company by its authorized representative. By executing the Award
Agreement or receipt, a Participant shall be deemed to have accepted and
consented to the terms of this Plan and any action taken in good faith under
this Plan by and within the discretion of the Committee, the Board of Directors
of their delegates.
12. EFFECTIVE DATE, TERMINATION AND AMENDMENT
12.1 EFFECTIVE DATE. The Plan shall become effective on the date of its
adoption by the Board; PROVIDED, HOWEVER, that no Incentive Stock Option shall
be exercisable by a Participant unless and until the Plan shall have been
approved by the stockholders of the Company, which approval shall be obtained
within 12 months before or after the adoption of the Plan by the Board.
12.2 TERMINATION. The Plan shall terminate on the date immediately
preceding the tenth anniversary of the earlier of the date the Plan is adopted
by the Board or the date the Plan is approved by the Company's stockholders.
The Board may, in its sole discretion and at any earlier date, terminate the
Plan. Notwithstanding the foregoing, no termination of the Plan shall in any
manner affect any
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Award theretofore granted without the consent of the Participant or the
permitted transferee of the Award.
12.3 AMENDMENT. The Board may at any time and from time to time and in any
respect, amend or modify the Plan; PROVIDED, HOWEVER, that no amendment or
modification of the Plan shall in any manner affect any Award theretofore
granted without the consent of the Participant or the permitted transferee of
the Award.
13. GENERAL PROVISIONS
13.1 ASSIGNMENT AND TRANSFER. Except as provided in Section 6.3 hereof,
Awards under the Plan shall not be assignable nor transferable, except by will
or by the laws of descent and distribution, and during the lifetime of a
Participant the Award shall be exercised only by such Participant or by his or
her guardian or legal representative.
13.2 RIGHTS AS STOCKHOLDER. A Participant shall have no rights as a holder
of Common Stock with respect to any unissued securities covered by an Award
until the date the Participant becomes the holder of record of these
securities. Except as provided in Section 3.2 hereof, no adjustment or other
provision shall be made for dividends or other stockholder rights, except to
the extent that the Award Agreement provides for dividend payments or similar
economic benefits.
13.3 EMPLOYMENT. Nothing in the Plan, in the grant of any Award or in any
Award Agreement shall confer upon any Eligible Person the right to continue in
the capacity in which he is employed by or otherwise serves the Company or any
Subsidiary.
13.4 SECURITIES LAWS. No shares of Common Stock will be issued or
transferred pursuant to an Award unless and until all then applicable
requirements imposed by federal and state securities and other laws, rules and
regulations and by any regulatory agencies having jurisdiction, and by any stock
exchanges upon which the Common Stock may be listed, have been fully met. As a
condition precedent to the issuance of shares pursuant to the grant or exercise
of an Award, the Company may require the Participant to take any reasonable
action to meet such requirements.
13.5 TAX WITHHOLDING. The Participant shall be responsible for payment of
any taxes or similar charges required by law to be withheld from an Award or an
amount paid in satisfaction of an Award and these obligations shall be paid by
the Participant on or prior to the payment of the Award. The Award Agreement
shall specify the manner in which the withholding obligation shall be satisfied
with respect to the particular type of Award.
13.6 OTHER COMPENSATION AND BENEFIT PLANS. The adoption of the Plan shall
not affect any other stock incentive or other compensation plans in effect for
the Company or any Subsidiary, nor shall the Plan preclude the Company from
establishing any other forms of stock incentive or other compensation for
employees of the Company or any Subsidiary. The amount of any compensation
deemed to be received by Participant pursuant to an Award shall not constitute
compensation with respect to which any other employee benefits of such
Participant are determined, including, without limitation, benefits under any
bonus, pension, profit sharing, life insurance or salary continuation plan,
except as otherwise specifically provided by the terms of such plan.
13.7 PLAN BINDING ON SUCCESSORS. The Plan shall be binding upon the
Company, its successors and assigns, and the Participant, his executor,
administrator and permitted transferees.
13.8 CONSTRUCTION AND INTERPRETATION. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender. Headings of Articles and Sections hereof are inserted for
convenience and reference and constitute no part of the Plan.
8
<PAGE>
13.9 SEVERABILITY. If any provision of the Plan or any Award Agreement
shall be determined to be illegal or unenforceable by any court of law in any
jurisdiction, the remaining provisions hereof and thereof shall be severable and
enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
13.10 GOVERNING LAW. The validity and construction of this Plan and of
the Award Agreements shall be governed by the laws of the State of Delaware.
This Progenics Pharmaceuticals, Inc. Amended 1996 Stock Incentive
Plan was duly adopted and approved by the Board of Directors of this Progenics
Pharmaceuticals, Inc. on the 2nd day of October, 1996.
/s/ ROBERT A. MCKINNEY
--------------------------------------------
Secretary of Progenics Pharmaceuticals, Inc.
This Progenics Pharmaceuticals, Inc. Amended 1996 Stock Incentive Plan
was duly approved by the stockholders of this Progenics Pharmaceuticals, Inc. on
the 2nd day of October, 1996.
/s/ ROBERT A. MCKINNEY
--------------------------------------------
Secretary of Progenics Pharmaceuticals, Inc.
9
<PAGE>
KEREN LIMITED PARTNERSHIP,
Landlord
and
PROGENICS PHARMACEUTICALS, INC.,
Tenant
--------------------
LEASE
--------------------
The Landmark at Eastview
Towns of Greenburgh
and Mount Pleasant
Westchester County, New York
<PAGE>
TABLE OF CONTENTS
Article Page
- ------- ----
1 Demise and Rent and Definitions ....................... 1
2 Use ................................................... 5
3 Condition of Premises ................................. 6
4 Intentionally Omitted ................................. 6
5 Intentionally Omitted ................................. 6
6 Subordination, Notice to Superior
Lessors and Superior Mortgagees ....................... 6
7 Quiet Enjoyment ....................................... 9
8 Assignment, Subletting and Mortgaging ................. 9
9 Compliance With Legal and Insurance Requirements ...... 16
10 Insurance ............................................. 18
11 Rules and Regulations ................................. 20
12 Alterations ........................................... 20
13 Landlord's and Tenant's Property ...................... 23
14 Repairs and Maintenance ............................... 24
15 Electric Energy ....................................... 24
16 Heat, Ventilation and Air-Conditioning ................ 25
17 Other Services; Service Interruption .................. 26
18 Access and Name of Project ............................ 27
19 Notice of Occurrences ................................. 29
20 Non-Liability and Indemnification ..................... 29
21 Damage or Destruction ................................. 30
22 Eminent Domain ........................................ 32
23 Surrender and Holding Over ............................ 33
i
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24 Default ............................................... 34
25 Re-entry by Landlord .................................. 36
26 Damages ............................................... 37
27 Affirmative Waivers ................................... 39
28 No Waivers ............................................ 39
29 Curing Tenant's Defaults .............................. 40
30 Broker ................................................ 40
31 Notices ............................................... 40
32 Estoppel Certificates ................................. 41
33 Execution and Delivery of Lease ....................... 41
34 Recording of Lease .................................... 42
35 Parking ............................................... 42
36 Environmental Compliance .............................. 42
37 Signs ................................................. 43
38 Approval Contingency .................................. 43
39 Intentionally Omitted ................................. 43
40 Partnership or Multi-Person Tenant .................... 43
41 Miscellaneous ......................................... 44
EXHIBITS
Exhibit A - Rules and Regulations
Exhibit B - Parking Area
ii
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LEASE, dated as of _______ __ 1994, between KEREN LIMITED PARTNERSHIP, a
Delaware limited partnership having an office at 777 Old Saw Mill River Road,
Tarrytown, New York 10591-6705 (herein called "Landlord"), and PROGENICS
PHARMACEUTICALS, INC., a New York corporation having an office at 729 Seventh
Avenue, New York, New York 10019 (herein called "Tenant").
WITNESSETH:
ARTICLE 1 - Demise and Rent and Definitions
1.01. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises (as defined in Section 1.02) in the building known as the
"Silicones Building" (herein called the "Building") on Landlord's land (herein
called "Land") located along Old Saw Mill River Road, partly in the Town of
Greenburgh and partly in the Town of Mount Pleasant, in the County of
Westchester and State of New York and called "The Landmark at Eastview."
Landlord intends to and shall have the right at any time to cause part or parts
of the Land to become a separate tax lot or separate tax lots in connection with
future development thereof. If Landlord does so, any separate tax lots that do
not include the Premises shall be excluded from the Land and "Land" shall mean
only the land in the tax lot of which the Premises are a part. The Land and all
of the buildings and other improvements presently and hereafter located thereon
are herein collectively called the "Project." The buildings and other
improvements presently and hereafter located on the Land are herein collectively
called the "Improvements."
1.02. The premises (herein called the "Premises") leased to Tenant consist
of the same space as shall constitute, as of December 30, 1997, the "Premises"
demised under and defined in that certain Tarrytown Sublease Agreement dated as
of July 13, 1988 between Union Carbide Corporation and Tenant, as amended by
amendments dated November 17, 1988, June 1, 1989, December 1, 1989, November 20,
1991 and June __, 1994 (the "Sublease"), true, correct and complete copies of
which Tenant represents and warrants it has heretofore delivered to Landlord.
Tenant shall have, as appurtenant to the Premises, the non-exclusive right to
use in common with others, subject to the terms and conditions of this Lease,
including the Rules and Regulations (as hereinafter defined): (a) the common
lobbies, corridors, stairways and elevators of the Building, if any, and (b) if
the Premises includes less than the rentable floor area of any floor, the common
toilets, corridors and lobby, if any, of such floor.
1.03. Subject to Sections 1.11 and 1.12, the term of this Lease (herein
called the "Term") shall commence on January 1, 1998 (herein called the
"Commencement Date") and shall end at 11:59 p.m. on April 30, 1998, or on such
earlier date upon which
<PAGE>
the Term shall expire or be cancelled or terminated pursuant to any of the
conditions or covenants of this Lease or pursuant to law. If for any reason the
Commencement Date shall be other than the specific date set forth above, then,
promptly following the Commencement Date the parties hereto shall enter into an
agreement in form and substance satisfactory to Landlord setting forth the
Commencement Date. If this Lease contains any renewal option or options, then
upon the valid exercise of any renewal option, the word "Term" shall be deemed
to include the renewal period for which said option or options was or were
exercised.
1.04. The rents shall be and consist of (a) fixed rent (herein called the
"Fixed Rent") at the rate of THIRTY DOLLARS ($30.00) per annum multiplied by the
number of square feet of gross rentable area in the Premises, which shall be
payable in equal monthly installments in advance on the first day of each and
every calendar month during the Term, and (b) additional charges (herein called
the "Additional Charges") consisting of all other sums of money as shall become
due from and payable by Tenant to Landlord hereunder; all the Fixed Rent and
Additional Charges shall be paid in lawful money of the United States to
Landlord at its office c/o Keren Developments Inc., 777 Old Saw Mill River Road,
Tarrytown, New York 10591-6705, Attention: Accounts Receivable, or such other
place, or to Landlord's agent and at such other place, as Landlord shall
designate by notice to Tenant.
1.05. Tenant shall pay the Fixed Rent and Additional Charges promptly when
due without notice or demand therefor and without any abatement, deduction or
setoff for any reason whatsoever, except as may be expressly provided for in
this Lease or by law. If the Commencement Date occurs on a day other than the
first day of a calendar month, the Fixed Rent for the partial calendar month at
the commencement of the Term shall be prorated.
1.06. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Fixed Rent or Additional Charges shall be deemed
to be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease or provided at law.
1.07. Tenant shall pay the Fixed Rent and Additional Charges as above and
as herein provided, by good and sufficient check (subject to collection) drawn
on a New York City bank which is a member of the New York Clearing House or a
successor thereto.
1.08. If Tenant fails to make any payment of Fixed Rent or Additional
Charges on or before the due date thereof,
2
<PAGE>
Tenant shall pay to Landlord a late charge of 1% of the amount such payment and,
in addition, such unpaid amount shall bear interest at a rate (herein called the
"Lease Interest Rate") equal to the lesser of (a) the rate announced by
Citibank, N.A. or its successor from time to time as its prime or base rate,
plus 2%, or (b) the maximum applicable legal rate, if any, from the date such
amount became due and payable to the date of payment thereof by Tenant. Such
late charge and interest shall be due and payable on demand.
1.09. If any of the Fixed Rent or Additional Charges shall be or become
uncollectible, reduced or required to be refunded because of any Legal
Requirements (as defined in Section 1.10(i)), Tenant shall enter into such
agreement(s) and take such other steps (without additional expense to Tenant) as
Landlord may request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of such
legal rent restriction may be legally permissible (and not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction, (a) the rent shall become and thereafter be payable in
accordance with the amounts reserved herein for the periods following such
termination and (b) Tenant shall pay to Landlord, to the maximum extent legally
permissible, an amount equal to (i) the rent which would have been paid pursuant
to this Lease but for such legal rent restriction, less (ii) the rent actually
paid by Tenant during the period such legal rent restriction was in effect.
1.10. The following terms, whenever used in this Lease, shall have the
meanings indicated:
(a) The term "and/or" when applied to two or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(b) The term "Business Days" shall mean all days except Saturdays,
Sundays and days observed by the Federal or the state governments as legal
holidays.
(c) The term "Business Hours" shall mean 6:00 a.m. to 7:00 p.m.
(d) Intentionally deleted.
(e) The terms "herein" and "hereunder," and words of similar import,
shall be construed to refer to this Lease as a whole, and not to any
particular Article or Section, unless expressly so stated.
3
<PAGE>
(f) The term "Insurance Requirements" shall mean the rules,
regulations, orders and requirements of the New York Board of Underwriters
and/or the New York Fire Insurance Rating Organization and/or any other
similar body performing the same or similar functions and having
jurisdiction or cognizance over the Building and/or the Premises, whether
now or hereafter in force, and the requirements of any insurance policy
maintained by Landlord.
(g) The term "Landlord" shall mean only the owner at the time in
question of the Building or of a lease of the Building, so that in the
event of any transfer or transfers of title to the Building or of
Landlord's interest in a lease of the Building, the transferor shall be
and hereby is relieved and freed of all obligations of Landlord under this
Lease accruing after such transfer, and it shall be deemed, without
further agreement that such transferee has assumed and agreed to perform
and observe all obligations of Landlord herein during the period it is the
holder of Landlord's interest under this Lease.
(h) The term "Lease Year" shall mean the 12-month period beginning
on the Commencement Date or commencing on any anniversary of the
Commencement Date.
(i) The term "Legal Requirements" shall mean laws and ordinances of
any or all of the federal, state, city, town, county, borough and village
governments and rules, regulations, orders and directives of any and all
departments, subdivisions, bureaus, agencies or offices thereof, and of
any other governmental, public or quasi-public authorities having
jurisdiction over the Building and/or the Premises, and the direction of
any public officer pursuant to law, whether now or hereafter in force.
(j) The term "person" shall mean any natural person or persons, a
partnership, a corporation, and any other form of business or legal
association or entity.
(k) The term "Tenant" shall mean the Tenant herein named or any
assignee or other successor in interest (immediate or remote) of the
Tenant herein named, which at the time in question is the owner of the
Tenant's estate and interest granted by this Lease; but the foregoing
provisions of this subsection shall not be construed to permit any
assignment of this Lease or to relieve the Tenant herein named or any
assignee or other successor in interest (whether immediate or
4
<PAGE>
remote) of the Tenant herein named from the full and prompt payment,
performance and observance of the covenants, obligations and conditions to
be paid, performed and observed by Tenant under this Lease.
1.11. The Term shall not commence if, prior to December 30, 1997, (a) the
Sublease is terminated (i) for a reason other than Tenant's default and (ii)
other than as a consequence of the entry by Tenant into an agreement with the
Sublessor surrendering the Premises, terminating the Sublease or modifying the
Sublease to shorten the term thereof, and (b) Tenant has vacated the Premises in
accordance with the Sublease.
1.12. Tenant shall have the option to terminate this Lease, at its
election, by giving to Landlord notice of such election on or before December
31, 1996, in which event the Term shall not commence.
ARTICLE 2 - Use
2.01. Tenant shall use the Premises for executive and sales office and
pharmaceutical development purposes involving protein chemistry, molecular
genetics and cellular biophysics, and for any other lawful purpose incidental
thereto, but for no other purpose.
2.02. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Premises or any part
thereof (other than the present certificate of occupancy for the Premises or for
the Building), Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit and submit the same to Landlord for inspection.
Tenant shall at all times comply with the terms and conditions of each such
license or permit. Tenant shall not at any time use or occupy, or suffer or
permit anyone to use or occupy, the Premises, or any part thereof, in any manner
(a) which violates the certificate of occupancy for the Premises or for the
Building or any other permit or license issued pursuant to any Legal
Requirements; (b) which causes or is liable to cause injury to the Building or
any equipment, facilities or systems therein; (c) which constitutes a violation
of the Legal Requirements or Insurance Requirements; (d) which impairs or tends
to impair the character, reputation or appearance of the Building as a first
class office building; (e) which impairs or tends to impair the proper and
economic maintenance, operation and repair of the Building and/or its equipment,
facilities or systems; or (f) which annoys or inconveniences or tends to annoy
or inconvenience other tenants or occupants of the Project. Tenant shall not at
any time use or occupy, or suffer or permit anyone to use or occupy, the
Premises, or any part thereof, for (i) the production or
5
<PAGE>
disposal of any toxic chemicals, (ii) a banking, trust company, or safe deposit
business, or (iii) a restaurant and/or bar.
2.03. No use of the Premises by Tenant prior to the Commencement Date (a)
shall be deemed a breach of any covenant in this Lease or the Rules and
Regulations (as defined in Section 11.01) relating to the use of the Premises by
Tenant or (b) shall expose Tenant to charges by Landlord for increased insurance
premiums or other costs or expenses.
ARTICLE 3 - Condition of Premises
3.01. Tenant is leasing the Premises "as is" on the date hereof, except
for (i) reasonable wear and tear, (ii) the rights of the present occupant(s) of
the Premises to remove its or their trade fixtures and other property from the
Premises and (iii) wear and tear, damage, alterations and other changes caused
or suffered by Tenant as subtenant of the Premises, to the extent not the
responsibility of Landlord under the "Prime Lease" referred to in the Sublease.
3.02. If Tenant is not already in, and Landlord is unable to give,
possession of the Premises on the Commencement Date, because of fire or other
casualty or the occurrence of any of the events described in Section 41.04),
Landlord shall not be subject to any liability for failure to give possession on
the Commencement Date and the validity of this Lease shall not be impaired under
such circumstances, nor shall the same be construed in any way to extend the
Term, but the Fixed Rent and Additional Charges payable hereunder shall be
abated (provided Tenant is not responsible for the inability to obtain
possession) until Landlord tenders possession to Tenant. Tenant hereby waives
the provisions of Section 223-a of the Real Property Law of the State of New
York, and agrees that the provisions of this Article are intended to constitute
"an express provision to the contrary" within the meaning of said Section 223-a.
ARTICLE 4 - Intentionally Omitted
ARTICLE 5 - Intentionally Omitted
ARTICLE 6 - Subordination, Notice to Superior
Lessors and Superior Mortgagees
6.01. The holder of any mortgage which may now or hereafter affect the
Land and/or the Building and/or any Superior Lease (as hereinafter defined) may
elect that this Lease and all rights of Tenant hereunder shall have priority
over such mortgage and, upon notification by such holder to
6
<PAGE>
Tenant, this Lease shall be deemed to have priority over such mortgage, whether
this Lease is dated prior to or subsequent to the date of such mortgage. Except
for any mortgage where the holder gave the aforesaid notification that this
Lease shall have priority over such mortgage, this Lease, and all rights of
Tenant hereunder, are and shall be subject and subordinate to all ground leases,
overriding leases and underlying leases of the Land and/or the Improvements now
or hereafter existing and to all mortgages which may now or hereafter affect the
Land and/or the Improvements and/or any of such leases, including, without
limitation, that certain Mortgage Consolidation, Modification, Extension and
Spreader Agreement dated as of September 30, 1987, between Landlord, as
Mortgagor, and Swiss Bank Corporation, New York Branch (herein called "Swiss
Bank"), as Mortgagee, and that certain Restated Mortgage dated as of September
30, 1987, between Landlord, as Mortgagor, and Union Carbide Corporation (now
known as Union Carbide Chemicals and Plastics Company Inc.) (herein called
"Carbide"), as Mortgagee, whether or not such mortgages shall also cover other
lands and/or buildings and/or leases, to each and every advance made or
hereafter to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages. This Section shall be self-operative and no
further instrument of subordination or priority (as described in the first
sentence of this Section) shall be required. In confirmation of such
subordination or priority (as described in the first sentence of this Section),
Tenant shall promptly execute, acknowledge and deliver any instrument that
Landlord, the lessor under any such lease or the holder of any such mortgage or
any of their respective successors in interest may reasonably request to
evidence such subordination or priority. Any lease to which this Lease is, at
the time referred to, subject and subordinate is herein called a "Superior
Lease," and the lessor of a Superior Lease or its successor in interest, at the
time referred to, is herein called a "Superior Lessor" and any mortgage (a) to
which this Lease is, at the time referred to, subject and subordinate or (b) to
which this Lease shall have priority due to the effect of the first sentence of
this Section is herein called a "Superior Mortgage" and the holder of a Superior
Mortgage is herein called a "Superior Mortgagee."
6.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such
7
<PAGE>
notice and following the time when such Superior Mortgagee or Superior Lessor
shall have become entitled under such Superior Mortgage or Superior Lease, as
the case may be, to remedy the same (which reasonable period shall in no event
be less than the longer of 180 days or the period to which Landlord would be
entitled under this Lease or otherwise, after similar notice, to effect such
remedy), provided such Superior Mortgagee or Superior Lessor shall with due
diligence give Tenant notice of intention to, and commence and continue to,
remedy such act or omission. The current address of Swiss Bank, a Superior
Mortgagee, is Swiss Bank Tower, 15th Floor, 10 East 50th Street, New York, New
York 10022, Attention of Real Estate Department, Mr. Roy Chin, Director,
Restructuring. The current address of Carbide, a Superior Mortgagee, is 39 Old
Ridgebury Road, Danbury, Connecticut 06817-0001, Attention of Mr. James N.
Barton, Director of General Services.
6.03. If any Superior Mortgagee or Superior Lessor shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (herein called a "Successor Landlord"), Tenant
shall attorn to and recognize such Successor Landlord as Tenant's landlord under
this Lease and shall promptly execute and deliver any instrument that such
Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; (c) be
obligated to complete any work to prepare the Premises for Tenant's occupancy;
(d) be obligated to make any payment to or on behalf of Tenant; (e) be required
to account for any security deposit other than any actually delivered to the
Successor Landlord; or (f) be bound by any previous modification of this Lease
or by any previous prepayment of more than one month's Fixed Rent, unless such
modification or prepayment shall have been expressly approved in writing by the
lessor of the Superior Lease or the holder of the Superior Mortgage through or
by reason of which the Successor Landlord shall have succeeded to the rights of
Landlord under this Lease.
6.04. If any prospective or actual Superior Mortgagee or Superior Lessor
requires any modification of this Lease, Tenant shall, upon notice thereof from
Landlord, promptly execute and deliver to Landlord the instrument accompanying
said notice from Landlord to effect such modification if such instrument does
not adversely affect in
8
<PAGE>
any respect any of Tenant's rights under this Lease and does not increase in any
respect any of Tenant's obligations under this Lease.
6.05. Landlord represents to Tenant that, as of the date hereof, the only
Superior Mortgagees are Swiss Bank and Carbide. Notwithstanding any provision to
the contrary in Section 6.01, this Lease shall not be subordinate to any
mortgage unless Tenant receives a non-disturbance agreement from the holder of
such mortgage, in such holder's standard form thereof. Tenant agrees to execute,
acknowledge and deliver each such non-disturbance agreement. If Landlord fails
to obtain and deliver to Tenant, within 60 days after the date hereof, such a
non-disturbance agreement from each of Swiss Bank and Carbide, then Tenant shall
have the right, at its option, to terminate this Lease by written notice given
to Landlord at any time after such 60-day period (but prior to the delivery to
Tenant of such non-disturbance agreements).
ARTICLE 7 - Quiet Enjoyment
7.01. So long as Tenant pays all of the Fixed Rent and Additional Charges
and performs all of Tenant's other obligations hereunder, Tenant shall peaceably
and quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any person lawfully claiming through or under
Landlord, subject, nevertheless, to the provisions of this Lease and to any
Superior Leases and Superior Mortgages. This covenant shall be construed as a
covenant running with the Land, and is not, nor shall it be construed as, a
personal covenant of Landlord, except to the extent of Landlord's interest in
this Lease and only so long as such interest shall continue, and thereafter this
covenant shall be binding only upon subsequent successors in interest of
Landlord's interest in this Lease, to the extent of their respective interests,
as and when they shall acquire the same, and so long as they shall retain such
interest.
ARTICLE 8 - Assignment, Subletting and Mortgaging
8.01. Except as permitted by Section 8.02, Tenant shall not, whether
voluntarily, involuntarily, or by operation of law or otherwise (a) assign or
otherwise transfer this Lease, or offer or advertise to do so, (b) sublet the
Premises or any part thereof, or offer or advertise to do so, or allow the same
to be used, occupied or utilized by anyone other than Tenant, or (c) mortgage,
pledge, encumber or otherwise hypothecate this Lease or the Premises or any part
thereof in any manner whatsoever, without in each instance obtaining the prior
consent of Landlord and all Superior Mortgagees which consent, subject to the
requirements of Section 8.10, shall not be unreasonably withheld or delayed.
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8.02. If and so long as Tenant is a corporation or a partnership, one or
more voluntary sales or transfers of stock or partnership interests, or the
issuance of new stock or partnership interests, which, in either case, results
in an aggregate of more than 50% of Tenant's stock or partnership interests
being vested in a party or parties who are not stockholders or partners as of
the date hereof, shall be deemed to be an assignment of this Lease under Section
8.01 prohibited by said Section unless either (a) Tenant obtains the prior
consent of Landlord and all Superior Mortgagees pursuant to Section 8.01, or (b)
such transfer(s) or issuance is made for a legitimate business purpose and not
primarily to circumvent the restrictions on assignment of this Lease contained
in this Article 8. Without limiting the generality of the exception set forth in
the foregoing clause (b), the provisions of this Section shall not apply to any
corporation all the outstanding voting stock of which is listed on a national
securities exchange (as defined in the Securities Exchange Act of 1934, as
amended) or is traded in the over-the-counter market with quotations reported by
the National Association of Securities Dealers through its automated system for
reporting quotations. Also, Tenant shall have the right, without the consent of
Landlord or any Superior Mortgagee, to assign this Lease or sublet the Premises
or any part thereof to any corporation or partnership which controls, or is
controlled by, or is under common control with Tenant, or to any entity
succeeding to all or substantially all of Tenant's assets, and Sections 8.07,
8.08, 8.09, 8.10 and 8.14 and the first two sentences of Section 8.12 shall not
apply to such an assignment or subletting.
8.03. If this Lease is assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof are sublet or used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the Fixed Rent and Additional Charges herein reserved, but
no such assignment, subletting, occupancy or collection shall be deemed a waiver
of any of the provisions of Section 8.01, or the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord and any
Superior Mortgagee to assignment, mortgaging, subletting or use or occupancy by
others shall not in any way be considered to relieve Tenant from obtaining the
consent of Landlord and all Superior Mortgagees to any other or further
assignment, mortgaging, subletting or use or occupancy by others not expressly
permitted by this Article. References in this Lease to use or occupancy by
others (that is, anyone other
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than Tenant) shall not be construed as limited to subtenants and those claiming
under or through subtenants but as including also licensees and others claiming
under or through Tenant, immediately or remotely.
8.04. Any assignment or transfer, whether made with Landlord's and all
Superior Mortgagees' consent pursuant to Section 8.01 or without the requirement
of Landlord's and all Superior Mortgagees' consent pursuant to Section 8.02,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Landlord an agreement in form and substance
reasonably satisfactory to Landlord and all Superior Mortgagees whereby the
assignee shall assume the obligations of this Lease on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
in Section 8.01 shall, notwithstanding such assignment or transfer, continue to
be binding upon it in respect of all future assignments and transfers.
Notwithstanding any assignment or transfer, whether or not in violation of the
provisions of this Lease, and notwithstanding the acceptance of the Fixed Rent
or Additional Charges by Landlord from an assignee, transferee, or any other
party, the original named Tenant shall remain fully liable for the payment of
the Fixed Rent and Additional Charges and for the other obligations of this
Lease on the part of Tenant to be performed or observed.
8.05. The liability of Tenant and any immediate or remote successor in
interest of Tenant and the due performance of the obligations of this Lease on
Tenant's part to be performed or observed shall not be discharged, released or
impaired in any respect by any agreement or stipulation made by Landlord with
the then Tenant extending the time of, or modifying any of the obligations of,
this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations of this Lease.
8.06. Neither the listing of any name other than that of Tenant, whether
on the door of the Premises or on any directory, or otherwise, nor the
acceptance by Landlord of any check not drawn by Tenant in payment of Fixed Rent
or Additional Charges, shall operate to vest any right or interest in this Lease
or in the Premises, nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Premises or to
the use or occupancy thereof by others.
8.07. Except as specifically provided to the contrary in this Article 8,
if Tenant shall at any time or times during the Term desire to assign this Lease
or sublet all or any part of the Premises, Tenant shall give notice thereof to
Landlord and all Superior Mortgagees, which notice shall be
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accompanied by (a) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be at least 60 days
after the giving of such notice, (b) a statement setting forth in reasonable
detail the identity of the proposed assignee or subtenant, the nature of its
business and its proposed use of the Premises, and (c) current financial
information with respect to the proposed assignee or subtenant, including,
without limitation, its most recent financial report. Such notice shall be
deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's
designee) may, at its option, (i) sublease such space from Tenant upon the terms
and conditions hereinafter set forth or (ii) terminate this Lease (if the
proposed transaction is an assignment or a sublease of all or substantially all
of the Premises). Said options may be exercised by Landlord by notice to Tenant
at any time within 60 days after such notice has been given by Tenant to
Landlord; and during such 60-day period Tenant shall not assign this Lease or
sublet such space to any person.
8.08. If Landlord exercises its option to terminate this Lease in the case
where Tenant desires either to assign this Lease or sublet all or substantially
all of the Premises, then this Lease shall end and expire on the date that such
assignment or sublet was to be effective or commence, as the case may be, and
the Fixed Rent and Additional Charges shall be paid and apportioned to such
date.
8.09. If Landlord exercises its option to sublet the Premises which Tenant
desires to sublet, such sublease to Landlord or its designee (as subtenant)
shall be at the lower of (i) the rental rate per rentable square foot of the
Fixed Rent and Additional Charges then payable pursuant to this Lease or (ii)
the rentals set forth in the proposed sublease, and shall be for the same term
as that of the proposed subletting, and:
(a) the sublease shall be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease except such as
are irrelevant or inapplicable, and except as otherwise expressly set
forth to the contrary in this Section;
(b) such sublease shall be upon the same terms and conditions as
those contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary
in this Section;
(c) such sublease shall give the sublessee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease
or any interest therein
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and/or to further sublet the Premises or any part or parts thereof and to
make any and all changes, alterations, and improvements in the Premises;
(d) such sublease shall provide that any assignee or further
subtenant of Landlord or its designee may, at the election of Landlord, be
permitted to make alterations, decorations and installations in such space
or any part thereof and shall also provide in substance that any such
alterations, decorations and installations in such space therein made by
any assignee or subtenant of Landlord or its designee may be removed, in
whole or in part, by such assignee or subtenant, at its option, prior to
or upon the expiration or other termination of such sublease provided that
such assignee or subtenant, at its expense, shall repair any damage and
injury to such space so sublet caused by such removal; and
(e) such sublease shall provide that (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties,
(ii) any assignment or further subletting by Landlord or its designee (as
the sublessor) may be for any purpose or purposes that Landlord, in
Landlord's uncontrolled discretion, shall deem suitable or appropriate,
and (iii) at the expiration of the term of such sublease, Tenant will
accept the space covered by such sublease in its then existing condition,
subject to the obligations of the subtenant to make such repairs thereto
as may be necessary to preserve the premises demised by such sublease in
good order and condition, ordinary wear and tear and damage by fire or
other casualty excepted.
8.10. If Landlord does not exercise its options pursuant to Section 8.07
to so sublet the Premises or terminate this Lease and providing that Tenant is
not in default of any of Tenant's obligations under this Lease, Landlord's
consent (which shall be in form reasonably satisfactory to Landlord) to the
proposed assignment or sublease shall not be unreasonably withheld, provided and
upon condition that:
(a) Tenant shall have complied with the provisions of Section 8.07
and Landlord shall not have exercised any of its options under said
Section 8.07 within the time permitted therefor;
(b) in Landlord's judgment the proposed assignee or subtenant is
engaged in a business and the Premises will be used in a manner which (i)
is in keeping with the then standards of the Building, (ii) is limited to
the use expressly permitted under Section 2.01, and (iii) will not
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violate any negative covenant as to use contained in any other lease of
space in the Project;
(c) the proposed assignee or subtenant is a reputable person of good
character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable
proof thereof;
(d) neither (i) the proposed assignee or sublessee nor (ii) any
person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or sublessee or any
person who controls the proposed assignee or sublessee, is then an
occupant of any part of the Project or any other building in the County of
Westchester owned or operated under a ground or underlying lease by
Landlord or any person which, directly or indirectly, controls, is
controlled by, or is under common control with Landlord or any person who
controls Landlord;
(e) the proposed assignee or sublessee is not a person with whom
Landlord is then negotiating or in the prior six-month period was
negotiating to lease space in the Project;
(f) the form of the proposed sublease (if Tenant proposes to
sublease all of the Premises) shall be in form reasonably satisfactory to
Landlord and shall comply with the applicable provisions of this Article;
and
(g) the consent of any Superior Mortgagee whose Superior Mortgage
requires the consent of the Superior Mortgagee shall have been obtained.
8.11. Tenant shall reimburse Landlord on demand for any costs that may be
incurred by Landlord in connection with any proposed assignment or sublease,
whether consented to by Landlord or not, including, without limitation, the
costs of making investigations as to the acceptability of the proposed assignee
or subtenant, and legal costs incurred in connection with the granting of any
requested consent.
8.12. The amount of the aggregate rent per rentable square foot to be paid
by a proposed subtenant under a proposed sublease shall not be less than the
then current market rent per rentable square foot for the Premises as though the
Premises were vacant. The rental and other terms and conditions of any actual
sublease shall be the same as those contained in the proposed sublease furnished
to Landlord pursuant to Section 8.07. Tenant shall not (a) advertise or
publicize in any way the availability of the Premises without
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prior notice to and approval by Landlord, or (b) list the Premises for
subletting, whether through a broker, agent, representative or otherwise at a
rental rate less than the Fixed Rent and Additional Charges at which Landlord is
then offering to lease comparable space in the Project.
8.13. Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this Lease. Notwithstanding any such subletting to
Landlord or any such subletting to any other subtenant and/or acceptance of rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the Fixed Rent and Additional Charges due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions contained in this Lease on the part of Tenant
to be performed and all acts and omissions of any licensee or subtenant or
anyone claiming under or through any subtenant which shall be in violation of
any of the obligations of this Lease, and any such violation shall be deemed to
be a violation by Tenant. Tenant further agrees that notwithstanding any such
subletting, no other and further subletting of the Premises by Tenant or any
person claiming through or under Tenant (except as provided in Section 8.09)
shall or will be made except upon compliance with and subject to the provisions
of this Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options under
Section 8.07, Tenant shall indemnify, defend and hold harmless Landlord against
and from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
8.14. If (a) Landlord fails to exercise all of its options under Section
8.07 and Landlord consents to a proposed assignment or sublease, and (b) Tenant
fails to execute and deliver the assignment or sublease to which Landlord
consented within 45 days after the giving of such consent, then Tenant shall
again comply with all of the provisions and conditions of Section 8.07 before
assigning this Lease or subletting all or any part of the Premises.
8.15. With respect to each and every sublease or subletting authorized by
Landlord under the provisions of this Lease, it is further agreed that:
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(a) no subletting shall be for a term ending later than one day
prior to the expiration date of this Lease;
(b) no sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord; and
(c) each sublease shall provide that it is subject and subordinate
to this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination, reentry or dispossess
by Landlord under this Lease Landlord may, at its option, take over all of
the right, title and interest of Tenant, as sublessor, under such
sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease,
except that Landlord shall not (i) be liable for any previous act or
omission of Tenant under such sublease, (ii) be subject to any offset
which theretofore accrued to such subtenant against Tenant, or (iii) be
bound by any previous modification of such sublease or by any previous
prepayment of more than one month's rent.
8.16. Intentionally deleted.
ARTICLE 9 - Compliance With Legal and Insurance Requirements
9.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any Legal Requirements or Insurance Requirements
with respect to the Premises or the use or occupation thereof. Tenant shall, at
Tenant's expense, comply with all Legal Requirements and Insurance Requirements
which shall, in respect of the Premises or the use and occupation thereof, or
the abatement of any nuisance in, on or about the Premises, impose any
violation, order or duty on Landlord or Tenant, arising from (a) Tenant's use of
the Premises, (b) the manner of conduct of Tenant's business or operation of its
installations, equipment or other property therein, (c) any cause or condition
created by or at the instance of Tenant, or (d) breach of any of Tenant's
obligations hereunder, and Tenant shall pay all the costs, expenses, fines,
penalties and damages which may be imposed upon Landlord or any Superior Lessor
or Superior Mortgagee by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section. However,
Tenant need not comply with any such Legal Requirements and Insurance
Requirements so long as Tenant is contesting the validity thereof, or the
applicability thereof to the Premises, in accordance with Section 9.02. Subject
to the provisions of Section 9.03, Landlord, at its expense, shall
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comply with all other Legal Requirements and Insurance Requirements as shall
affect the Premises, but may similarly defer compliance so long as Landlord
shall be contesting the validity or applicability thereof.
9.02. Tenant, at its expense, after notice to Landlord, may contest, by
appropriate proceedings prosecuted diligently and in good faith, the validity,
or applicability to the Premises, of any Legal Requirements and Insurance
Requirements, provided that (a) neither Landlord nor any Superior Mortgagee or
Superior Lessor shall be subject to criminal penalty or to prosecution for a
crime, nor shall the Premises or any part thereof be subject to being condemned
or vacated, by reason of noncompliance or otherwise by reason of such contest;
(b) before the commencement of such contest, Tenant shall furnish to Landlord
such security as shall be satisfactory to Landlord and all Superior Mortgagees,
and Tenant shall indemnify Landlord and any Superior Mortgagees and Superior
Lessors against the cost thereof and against all liability for damages,
interest, penalties and expenses (including reasonable attorneys' fees and
expenses), resulting from or incurred in connection with such contest or
noncompliance; (c) such noncompliance or contest shall not constitute or result
in any violation of any Superior Lease or Superior Mortgage, or if any such
Superior Lease Superior Mortgage shall permit such noncompliance or contest on
condition of the taking of action or furnishing of security by Landlord, such
action shall be taken and such security shall be furnished at the expense of
Tenant; and (d) Tenant shall keep Landlord advised as to the status of such
proceedings. Without limiting the application of the above, Landlord and/or a
Superior Mortgagee and/or Superior Lessor shall be deemed subject to prosecution
for a crime if Landlord or the Superior Mortgagee or Superior Lessor or any
managing agent for the Project, or any officer, director, partner, shareholder
or employee of Landlord or a Superior Mortgagee or Superior Lessor or any
managing agent for the Project, as an individual, is charged with a crime of any
kind or degree whatever, whether by service of a summons or otherwise, unless
such charge is withdrawn before Landlord or the Superior Mortgagee or Superior
Lessor or any managing agent for the Project, or such officer, director,
partner, shareholder or employee of Landlord or the Superior Mortgagee or
Superior Lessor or any managing agent for the Project (as the case may be) is
required to plead or answer thereto.
9.03. Intentionally deleted.
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ARTICLE 10 - Insurance
10.01. Tenant shall not violate, or permit the violation of, any Insurance
Requirements and shall not do, or permit anything to be done, or keep or permit
anything to be kept in the Premises which would subject Landlord or any Superior
Mortgagee or Superior Lessor to any liability or responsibility for bodily
injury or death or property damage, or which would increase any insurance rate
in respect of insurance maintained by or for the benefit of Landlord over the
rate which would otherwise then be in effect or which would result in insurance
companies of good standing refusing to insure all or any part of the Project or
any contents thereof in amounts reasonably satisfactory to Landlord, or which
would result in the cancellation of or the assertion of any defense by the
insurer in whole or in part to claims under any policy of insurance in respect
of the Project.
10.02. If, by reason of any failure of Tenant to comply with the
provisions of Section 9.01 or Section 10.01, the premiums on insurance
maintained by or for the benefit of Landlord shall be higher than they otherwise
would be, Tenant shall reimburse Landlord, on demand, for that part of such
premiums attributable to such failure on the part of Tenant. A schedule or "make
up" of rates for insurance maintained by or for the benefit of Landlord issued
by the New York Fire Insurance Rating Organization or other similar body making
rates for such insurance shall be conclusive evidence of the facts therein
stated and of the several items and charges in the insurance rate then
applicable to such insurance.
10.03. Tenant, at its expense, shall maintain at all times during the Term
(a) "all risk" property insurance covering the Tenant's Property (hereinafter
defined) with a limit of not less than 80% of the replacement cost thereof, and
(b) commercial general liability insurance, including a contractual liability
endorsement, in respect of the Premises and the conduct or operation of business
therein, with Landlord and its managing agent, if any, and any Superior Lessors
and Superior Mortgagees, including, without limitation, Swiss Bank and Carbide,
whose names and addresses shall have been furnished to Tenant, as additional
insureds, with limits of not less than $5,000,000 combined single limit bodily
injury and property damage liability. The limits of such insurance shall not
limit the liability of Tenant hereunder. Tenant shall deliver to Landlord and
any additional insureds certificates and copies of the binders for such
insurance in form reasonably satisfactory to Landlord issued by the insurance
company or its authorized agent no later than 10 days before the Commencement
Date and prior to the commencement of any work by Tenant. Tenant shall procure
and pay for renewals of such insurance from time to time before the expiration
thereof, and Tenant
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shall deliver to Landlord and any additional insureds certificates and copies of
the binders for such renewal policy issued by the insurance company or its
authorized agent at least 30 days before the expiration of any existing policy.
All such policies shall be issued by companies licensed to do business in New
York State and reasonably satisfactory to Landlord. All such policies shall be
noncancellable in respect of Landlord and any additional insureds unless 30
days' prior written notice is given to Landlord and all additional insureds and
all such policies shall provide that no act or omission of Tenant shall affect
or limit the obligations of the insurer in respect of Landlord and the
additional insureds.
10.04. Each party agrees to have included in each of its insurance
policies (insuring the Building and Landlord's property therein in the case of
Landlord, and insuring the Tenant's Property in the Premises in the case of
Tenant, against loss, damage or destruction by fire or other casualty) a waiver
of the insurer's right of subrogation against the other party during the Term
or, if such waiver is unobtainable or unenforceable, (a) an express agreement
that such policy shall not be invalidated if the insured waives the right of
recovery against any party responsible for a casualty covered by the policy
before the casualty, or (b) any other form of permission for the release of the
other party. If such waiver, agreement or permission shall not be, or shall
cease to be, obtainable from either party's then current insurance company, the
insured party shall so notify the other party promptly after learning thereof,
and shall use its best efforts to obtain the same from another insurance company
described in Section 10.03. If such waiver, agreement or permission is
obtainable only by payment of an additional charge, the insured party shall so
notify the other party promptly after learning thereof, and the insured party
shall not be required to obtain said waiver, agreement or permission unless the
other party pays the additional charge therefor. Each party hereby releases the
other, in respect of any claim (including a claim for negligence) which it might
otherwise have against the other for loss, damage or destruction in respect of
its property occurring during the Term to the extent to which it is insured
under a policy or policies containing a waiver of subrogation or permission to
release liability, as provided in the preceding sentences of this Section.
Nothing contained in this Section shall be deemed to relieve either party of any
duty imposed elsewhere in this Lease to repair, restore or rebuild or to nullify
any abatement of rents provided for elsewhere in this Lease.
10.05. Landlord may, by notice to Tenant given prior to the Commencement
Date, require that the amount of commercial general liability insurance to be
maintained by Tenant under
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Section 10.03 be reasonably increased, so that the amount thereof adequately
protects Landlord's interest.
10.06. During the Term, Landlord shall carry full replacement cost
insurance (subject to a commercially reasonable deductible), with extended
coverage, on the Building.
ARTICLE 11 - Rules and Regulations
11.01. Tenant and its employees and agents shall faithfully observe and
comply with the rules and regulations attached hereto as Exhibit A, and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter makes and communicates to Tenant, which,
in Landlord's reasonable judgment, shall be necessary for the reputation,
safety, care and appearance of the Project, or the preservation of good order
therein, or the operation or maintenance of the Project or its equipment and
fixtures, and which do not unreasonably affect the conduct of Tenant's business
in the Premises (such rules and regulations as changed from time to time being
herein called the "Rules and Regulations"); provided, however, that in case of
any conflict or inconsistency between the provisions of this Lease and any of
the Rules and Regulations, the provisions of this Lease shall control.
11.02. Nothing in this Lease shall be construed to impose upon Landlord
any duty or obligation to enforce the Rules and Regulations against any other
tenant or any employees or agents of any other tenant, and Landlord shall not be
liable to Tenant for violation of the Rules and Regulations by any other tenant
or its employees, agents, invitees or licensees.
ARTICLE 12 - Alterations
12.01. Tenant may from time to time, at its expense, make alterations
(herein called the "Alterations") in and to the Premises, excluding structural
changes, provided and upon condition that: (a) the outside appearance of the
Building shall not be affected; (b) the Alterations are nonstructural and the
strength of the Building shall not be affected; (c) the Alterations are to the
interior of the Premises and no part of the Building outside of the Premises
shall be affected; (d) the proper functioning of the mechanical, electrical,
sanitary and other service systems of the Building shall not be adversely
affected and the usage of such systems by Tenant shall not be increased; (e)
before proceeding with any Alteration, Tenant shall submit to Landlord for
Landlord's approval (which shall not be unreasonably withheld if the approval of
all Superior Mortgagees whose Superior Mortgages require the approval of the
Superior Mortgagee shall have been obtained) two sets of plans
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and specifications for the work to be done, and Tenant shall not proceed with
such work until it obtains such approval; (f) Tenant shall pay to Landlord upon
demand the reasonable cost and expense of Landlord in (i) reviewing said plans
and specifications and (ii) inspecting the Alterations to determine whether the
same are being performed in accordance with the approved plans and
specifications and all Legal Requirements and Insurance Requirements, including,
without limitation, the fees or cost of any architect, engineer or draftsman,
including the cost, based upon the actual salaries and fringe benefits of
architects, engineers or draftsmen who are employees of Landlord, for such
purposes; (g) before proceeding with any Alteration which will cost more than
$50,000 (exclusive of the costs of decorating work and items constituting the
Tenant's Property), as estimated, at Tenant's expense, by a reputable contractor
reasonably satisfactory to Landlord and all Superior Mortgagees, Tenant shall
obtain and deliver to Landlord such security as shall be satisfactory to
Landlord and all Superior Mortgagees; and (h) Tenant shall fully and promptly
comply with and observe the Rules and Regulations of Landlord then in force with
respect to the making of the Alterations. Tenant agrees that any review or
approval by Landlord of any plans and/or specifications with respect to any
Alterations is solely for Landlord's benefit, and without any representation or
warranty whatsoever to Tenant with respect to the adequacy, correctness or
efficiency thereof or otherwise.
12.02. Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of the Alterations
and for final approval thereof upon completion, and shall cause the Alterations
to be performed in compliance therewith and with all applicable Legal
Requirements and Insurance Requirements. The Alterations shall be diligently
performed in a good and workmanlike manner, using new materials and equipment at
least equal in quality and class to the original installations. The Alterations
shall be performed by contractors first approved by Landlord under the
supervision of a licensed architect. The Alterations shall be performed in such
a manner as not to violate union contracts affecting the Project, or create any
work stoppage, picketing, labor disruption or dispute or any interference with
the business of Landlord or any tenant of the Project. In addition, the
Alterations shall be performed in such a manner as not to otherwise unreasonably
interfere with or delay and as not to impose any additional expense upon
Landlord in the construction, maintenance, repair, operation or cleaning of the
Project, and if any such additional expense shall be incurred by Landlord as a
result of Tenant's performance of the Alterations, Tenant shall pay such
additional expense to Landlord on demand. Throughout the performance of the
Alterations, Tenant shall carry, or cause its contractors to carry, workers'
compensation insurance in
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statutory limits, "Builder's Risk" insurance reasonably satisfactory to
Landlord, and commercial general liability insurance, with completed operation
endorsement, for any occurrence in or about the Project, under which Landlord
and its managing agent and any Superior Lessors and Superior Mortgagees, whose
names and addresses were furnished to Tenant shall be named as additional
insureds, in such limits as Landlord may reasonably require, with insurers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect before the
commencement of the Alterations and, on request, at reasonable intervals during
the continuance of the Alterations. If any Alterations involve the removal of
any fixtures, equipment or other property in the Premises which are not Tenant's
Property, such fixtures, equipment or other property shall be replaced prior to
the end of the Term at Tenant's expense with new fixtures, equipment or other
property of like utility and at least equal value. Upon completion of any
Alterations (other than mere decorations) Tenant shall deliver to Landlord
scaled and dimensioned reproducible mylars of "as-built" plans for such
Alteration.
12.03. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with the Alterations, or any other work, labor, services
or materials done for or supplied to Tenant, or any person claiming through or
under Tenant, which shall be issued by the County of Westchester or the Town of
Greenburgh or the Town of Mount Pleasant or any other public authority having or
asserting jurisdiction. Tenant shall indemnify and save harmless Landlord and
any Superior Mortgagees and Superior Lessors from and against any and all
mechanics' and other liens and encumbrances filed in connection with the
Alterations, or any other work, labor, services or materials done for or
supplied to Tenant, or any person claiming through or under Tenant, including,
without limitation, security interests in any materials, fixtures or articles so
installed in and constituting part of the Premises and against all costs,
expenses and liabilities incurred in connection with any such lien or
encumbrance or any action or proceeding brought thereon. Tenant, at its expense,
shall procure the satisfaction or discharge of record of all such liens and
encumbrances within 10 days after the filing thereof. However, nothing herein
contained shall prevent Tenant from contesting, in good faith and at its own
expense, any notice of violation, provided that Tenant shall comply with the
provisions of Section 9.02.
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ARTICLE 13 - Landlord's and Tenant's Property
13.01. All fixtures, equipment, improvements and appurtenances, including,
without limitation, utility lines and equipment, attached to or built into the
Premises at the commencement of or during the Term, whether or not by or at the
expense of Tenant, shall be and remain a part of the Premises, shall be deemed
the property of Landlord and shall not be removed by Tenant, except as provided
in Section 13.02. Further, any carpeting or other personal property in the
Premises on the Commencement Date, unless installed and paid for by Tenant,
shall be and shall remain Landlord's property and shall not be removed by
Tenant.
13.02. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Premises, which are installed in the Premises by
or for the account of Tenant without expense to Landlord and can be removed
without structural damage to the Building, and all furniture, furnishings and
other articles of movable personal property owned by Tenant and located in the
Premises (herein collectively called the "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Premises or to the
Building resulting from the installation and/or removal thereof. Any equipment
or other property for which Landlord shall have granted any allowance or credit
to Tenant shall not be deemed to have been installed by or for the account of
Tenant without expense to Landlord, shall not be considered the Tenant's
Property, and shall be deemed the property of Landlord.
13.03. At or before the expiration date of this Lease, or within 15 days
after the date of any earlier termination of this Lease, Tenant, at its expense,
shall remove from the Premises all of the Tenant's Property, and Tenant shall
repair any damage to the Premises or the Building resulting from any
installation and/or removal of the Tenant's Property. Any other items of the
Tenant's Property which shall remain in the Premises after Tenant's vacation of
the Premises and the expiration date of this Lease, or after a period of 15 days
following Tenant's vacation of the Premises and an earlier termination date,
may, at the option of Landlord, be deemed to have been abandoned, and in such
case such items may be retained by Landlord as its property or disposed of by
Landlord, without accountability, in such manner as Landlord shall determine at
Tenant's expense.
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ARTICLE 14 - Repairs and Maintenance
14.01. Tenant shall be responsible for all repairs and replacements,
interior and exterior, structural and nonstructural, ordinary and extraordinary,
in and to the Premises and the Building and the facilities and systems thereof,
the need for which arises out of (a) the performance of any work by Tenant or
Alterations, (b) the installation, use or operation of the Tenant's Property in
the Premises, (c) the moving of the Tenant's Property in or out of the Premises
or the Building, or (d) the act, omission, misuse or neglect of Tenant or any of
its subtenants or its or their employees, agents, contractors or invitees.
Tenant shall promptly make, at Tenant's expense, all repairs in or to the
Premises for which Tenant is responsible. Any repairs required to be made by
Tenant to the mechanical, electrical, sanitary, heating, ventilating,
air-conditioning or other systems of the Building shall be performed only by
contractor(s) approved by Landlord. Any other repairs in or to the Building and
the facilities and systems thereof for which Tenant is responsible, may be
performed by Landlord at Tenant's expense.
14.02. Landlord shall make all repairs and replacements, structural and
otherwise, interior and exterior, as and when needed in or about the Premises,
except for those repairs and replacements for which Tenant is responsible
pursuant to any of the provisions of this Lease.
14.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or required by law, to make in or to any portion of the Building
or the Premises, or in or to the fixtures, equipment or appurtenances of the
Building or the Premises.
ARTICLE 15 - Electric Energy
15.01. Subject to the provisions of this Article, Landlord shall furnish
the electric energy that Tenant shall reasonably require in the Premises for the
purposes permitted under this Lease.
15.02. Landlord shall not be liable in any event to Tenant for any failure
or defect in the supply or character of electric energy furnished to the
Premises by reason of any requirement, act or omission of the public utility
serving the Building with electric energy or for any other reason not
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attributable solely to Landlord's willful misconduct or gross negligence.
15.03. Landlord shall furnish and install all replacement lighting tubes,
lamps, bulbs and ballasts required in the Premises, and Tenant shall pay to
Landlord or its designated contractor upon demand the then established charges
therefor of Landlord or its designated contractor, as the case may be.
15.04. Tenant's use of electric energy in the Premises shall not at any
time exceed the capacity of any of the electrical conductors and equipment in or
otherwise serving the Premises. In order to insure that such capacity is not
exceeded and to avert possible adverse effect upon the Building's distribution
of electricity via the Building's electric system, Tenant shall not, without
Landlord's prior consent in each instance (which shall not be unreasonably
withheld, based upon availability of electric energy in the Building as
allocated by Landlord to various areas of the Building) connect any fixtures,
appliances or equipment (other than normal business machines which do not
materially increase Tenant's electrical consumption) to the Building's electric
system or make any alterations or additions to the electric system of the
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
Landlord shall have the right to require Tenant to pay sums on account of such
cost prior to the installation of any such risers or equipment.
ARTICLE 16 - Heat, Ventilation and Air-Conditioning
16.01. Landlord shall maintain and operate the heating, ventilating and
air-conditioning systems serving the Premises, and shall furnish heat,
ventilating and air-conditioning in the Premises as may be reasonably required
(except as otherwise provided in this Lease) (a) for reasonably comfortable
occupancy of the Premises during Business Hours of Business Days, with a minimum
of 12 air changes per hour during such Business Hours, and (b) for six air
changes per hour at all other times. If Tenant shall require heat, ventilating
or air-conditioning service in addition to the foregoing, Landlord shall furnish
such service for such times ("Overtime Hours") upon not less than 48 hours
advance notice from Tenant, and Tenant shall pay Landlord for such overtime
heat, ventilating and air-conditioning as Additional Charges, within ten days
after Landlord bills Tenant therefor, which bills shall be rendered not more
often than monthly. The amount of such Additional Charges for a given period of
time shall be equal to Tenant's HVAC Percentage (as hereinafter defined) of the
total
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cost to Landlord of generating steam and chilled water for the Project for the
Overtime Hours of Tenant in such period. "Tenant's HVAC Percentage" for such
period shall mean the percentage that represents a fraction the numerator of
which is the sum of the respective BTU ratings of all of the air handlers in or
serving the Premises during such period, and the denominator of which is the sum
of the respective BTU ratings of all the air handlers in the Project during such
period.
16.02. Intentionally deleted.
ARTICLE 17 - Other Services; Service Interruption
17.01. Landlord shall furnish adequate hot and cold water to the Premises.
17.02. Landlord shall cause the Premises, including the exterior and the
interior of the windows thereof, to be cleaned in a manner standard to the
Building. Tenant shall pay to Landlord on demand the costs incurred by Landlord
for (a) extra cleaning work in the Premises required because of misuse or
neglect on the part of Tenant or its subtenants or its or their employees or
visitors; and (b) removal from the Premises and the Building of any refuse or
rubbish of Tenant in excess of that ordinarily accumulated in business office
occupancy or at times other than Landlord's standard cleaning times.
17.03. Landlord, its cleaning contractor and their employees shall have
access to the Premises after 5:30 p.m. and before 8:00 a.m. and shall have the
right to use, without charge therefor, all light, power and water in the
Premises reasonably required to clean the Premises as required under Section
17.02.
17.04. If Landlord shall furnish either gas or steam to the Premises,
Landlord shall not be liable in any event to Tenant for any failure or defect in
the supply or character of the gas or steam furnished to the Premises by reason
of any requirement, act or omission of the public utility serving the Building
with steam or for any other reason not attributable solely to Landlord's willful
misconduct or gross negligence. Tenant's use of gas or steam in the Premises
shall not at any time exceed the capacity of any of the gas lines and equipment
or steam lines and equipment in or otherwise then serving the Premises.
17.05. Landlord reserves the right, without any liability to Tenant and
without affecting Tenant's covenants and obligations hereunder, to stop or
interrupt or reduce service of any of the heating, ventilating,
air-conditioning, electric, sanitary, elevator, gas, steam, water or other
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Building systems serving the Premises, or to stop or interrupt or reduce any
other services required of Landlord under this Lease (whether or not specified
in Article 16 or this Article 17), whenever and for so long as may be necessary,
by reason of (a) accidents, emergencies, strikes or the occurrence of any of the
other events described in Section 41.04, (b) the making of repairs or changes
which Landlord is required or is permitted by this Lease or by law to make or in
good faith deems necessary, (c) difficulty in securing proper supplies of fuel,
gas, steam, water, electricity, labor or supplies, or (d) any other cause beyond
Landlord's reasonable control, whether similar or dissimilar. Landlord shall use
reasonable efforts to minimize the effect of the foregoing on Tenant.
ARTICLE 18 - Access and Name of Project
18.01. Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Premises, all of the Building,
including, without limitation, exterior Building walls, core corridor walls and
doors and any core corridor entrances, any terraces or roofs adjacent to the
Premises and any space in or adjacent to the Premises used for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, and the use thereof, as well as reasonable access thereto
through the Premises for the purposes of operation, maintenance, decoration and
repair, are reserved to Landlord.
18.02. Landlord reserves the right, and Tenant shall permit Landlord, to
install, erect, use and maintain pipes, ducts and conduits in and through the
Premises; provided that Landlord uses reasonable efforts to minimize the extent
to which the same interferes with Tenant's use of the Premises.
18.03. Landlord and its agents shall have the right to enter and/or pass
through the Premises at any time or times (a) to examine the Premises and to
show them to actual and prospective Superior Lessors, Superior Mortgagees, or
prospective purchasers, mortgagees or lessees of the Building and (b) to make
such repairs, alterations, additions and improvements in or to the Premises
and/or in or to the Building or its facilities and equipment as Landlord is
required or desires to make. Landlord shall be allowed to take all materials
into and on the Premises that may be required in connection therewith, without
any liability to Tenant and without any reduction of Tenant's covenants and
obligations hereunder. Landlord shall use reasonable efforts to minimize the
effect of the foregoing on Tenant.
18.04. If at any time any windows of the Premises are temporarily darkened
or obstructed by reason of any repairs, improvements, maintenance and/or
cleaning in or about
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the Building, or if any part of the Building, other than the Premises, is
temporarily or permanently closed or inoperable, the same shall be without any
reduction or diminution of Tenant's obligations under this Lease.
18.05. During the period of 18 months prior to the expiration date of this
Lease, Landlord and its agents may exhibit the Premises to prospective tenants.
18.06. Intentionally deleted.
18.07. Landlord reserves the right, at any time, without incurring any
liability to Tenant therefor, and without affecting or reducing or diminishing
any of Tenant's obligations hereunder, to make such changes, alterations,
additions and improvements in or to the Building and the fixtures and equipment
thereof, as well as in or to the entrances, doors, halls, passages, elevators,
escalators and stairways thereof, and other public parts of the Building, as
Landlord shall deem necessary or desirable. Landlord shall use reasonable
efforts to minimize the extent to which the making of such changes, alterations,
additions and improvements interferes with Tenant's use of the Premises.
18.08. Landlord may adopt any name for the Project. Landlord reserves the
right to change the name and/or address of the Project at any time.
18.09. Landlord and its agents shall have the right to permit access to
the Premises at any time, whether or not Tenant shall be present, (a) by any
receiver, trustee, sheriff, marshal or other public official entitled to, or
purporting to be entitled to, such access for any lawful purpose, or (b) by any
representative of the fire, police, building, sanitation or other department or
instrumentality of any town, county, city, state or federal government. Nothing
contained in, nor any action taken by Landlord under this Section, shall be
deemed to constitute recognition by Landlord that any person other than Tenant
has any right or interest in this Lease or the Premises.
18.10. If Tenant is not present when for any reason entry into the
Premises is necessary or permissible, Landlord or Landlord's agents may enter
same by a master key, or may forcibly enter same, without rendering Landlord or
such agents liable therefor (if during such entry Landlord or such agents accord
reasonable care to the Tenant's Property), and such entry shall not be deemed an
actual or constructive eviction and shall have no effect upon Tenant's
obligations under this Lease.
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ARTICLE 19 - Notice of Occurrences
19.01. Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Premises for which Landlord might be liable, (b) any fire or
other casualty in the Premises, (c) any damage to or defect in the Premises,
including the fixtures, equipment and appurtenances thereof, for the repair of
which Landlord might be responsible, and (d) any damage to or defect in any part
or appurtenance of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator or other systems located in or passing through the
Premises or any part thereof.
ARTICLE 20 - Non-Liability and Indemnification
20.01. Neither Landlord nor any Superior Lessor or Superior Mortgagee
shall be liable to Tenant for any loss, injury or damage to Tenant or to any
other person, or to its or their property, irrespective of the cause of such
injury, damage or loss, unless caused by or resulting from the negligence or
willful misconduct of Landlord or the Superior Lessor or Superior Mortgagee, in
the operation or maintenance of the Premises or the Project. Neither Landlord
nor any Superior Lessor or Superior Mortgagee shall be liable even if resulting
from negligence or willful misconduct, for consequential damages of Tenant or
any subtenant or licensee of Tenant.
20.02. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Project (or the net
proceeds of the sale or refinancing thereof) in the event of any claim against
Landlord or any partner, director, officer, agent or employee of Landlord
arising out of or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant's use of the Premises, and the liability of Landlord
arising out of or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant's use of the Premises, shall be limited to such estate and
property of Landlord (or the net proceeds of the sale or refinancing thereof).
No other properties or assets of Landlord or any partner, director, officer,
agent or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgment (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of or
in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Premises, and if Tenant acquires a lien on or interest in
any other properties or assets by judgment or otherwise, Tenant shall promptly
release such lien on or interest in such other properties and assets by
executing, acknowledging and delivering to Landlord an instrument to that effect
prepared by Landlord's attorneys. Tenant hereby waives
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the right of specific performance and any other remedy allowed in equity if
specific performance or such other remedy could result in any liability of
Landlord for the payment of money to Tenant or any court or governmental
authority (by way of fines or otherwise) for Landlord's failure or refusal to
perform or observe a judicial decree or determination.
20.03. Tenant shall indemnify and hold harmless Landlord and all Superior
Lessors and all Superior Mortgagees, including, without limitation, Swiss Bank
and Carbide, and its and their respective partners, directors, officers, agents
and employees from and against any and all claims arising from or in connection
with (a) the conduct or management of the Premises or of any business therein,
or any work or thing whatsoever done, or any condition created (other than by
Landlord) in or about the Premises during the Term or during the period of time,
if any, prior to the Commencement Date that Tenant may have been given access to
the Premises; (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their employees or contractors; (c) any
accident, injury or damage whatever (unless caused by Landlord's negligence or
willful misconduct) occurring in, at or upon the Premises; (d) any breach or
default by Tenant in the full and prompt payment and performance of Tenant's
obligations under this Lease; and (e) the failure of Tenant or any of its
subtenants or licensees or its or their employees or contractors to comply with
all Legal Requirements and Insurance Requirements; together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
attorneys' fees and expenses. In case any action or proceeding is brought
against Landlord and/or any Superior Lessor or Superior Mortgagee and/or its or
their partners, directors, officers, agents and/or employees by reason of any
such claim, Tenant, upon notice from Landlord or such Superior Lessor or
Superior Mortgagee, shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord).
ARTICLE 21 - Damage or Destruction
21.01. If the Building or the Premises shall be partially or totally
damaged or destroyed by fire or other casualty (and if this Lease shall not be
terminated as provided in this Article) Landlord shall repair the damage and
restore and rebuild the Building and/or the Premises (except for the Tenant's
Property) with reasonable dispatch after notice to it of the damage or
destruction and the collection of the insurance proceeds attributable to such
damage.
21.02. Subject to the provisions of Section 21.05, if all or part of the
Premises is damaged or destroyed or rendered completely or partially
untenantable on account of
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fire or other casualty, the Fixed Rent shall be reduced in the proportion that
the untenantable area of the Premises bears to the total area of the Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Premises is substantially repaired, or (b) if the Building and not
the Premises is so damaged or destroyed, the date on which the Premises is made
tenantable; provided, however, should Tenant reoccupy a portion of the Premises
during the period the repair work is taking place and prior to the date the
Premises are substantially repaired or made tenantable the Fixed Rent allocable
to such reoccupied portion, based upon the proportion which the area of the
reoccupied portion of the Premises bears to the total area of the Premises,
shall be payable by Tenant from the date of such occupancy.
21.03. If the Premises shall be materially (i.e. 30% or more) damaged or
destroyed by fire or other casualty, or if the Building shall be so damaged or
destroyed by fire or other casualty (whether or not the Premises are damaged or
destroyed) that its repair or restoration requires the expenditure (as estimated
by a reputable contractor or architect designated by Landlord) of more than 20%
of the full insurable value of the Building immediately prior to the casualty,
then in either such case Landlord may terminate this Lease by giving Tenant
notice to such effect within 180 days after the date of the fire or other
casualty and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of the date of termination.
21.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Premises or of the Building pursuant to this Article. Landlord
shall use its best efforts to make such repair or restoration promptly and in
such manner as not unreasonably to interfere with Tenant's use and occupancy of
the Premises, but Landlord shall not be required to do such repair or
restoration work except during Business Hours on Business Days.
21.05. Notwithstanding any of the foregoing provisions of this Article, if
by reason of some act or omission on the part of Tenant or any of its subtenants
or its or their partners, directors, officers, servants, employees, agents or
contractors, Landlord or any Superior Lessor or any Superior Mortgagee shall be
unable to collect all or substantially all of the insurance proceeds (including,
without limitation, rent insurance proceeds) applicable to damage or destruction
of the Premises or the Building by fire or other casualty, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no reduction of the Fixed Rent or Additional Charges.
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21.06. Landlord will not carry insurance of any kind on the Tenant's
Property and shall not be obligated to repair any damage to or replace the
Tenant's Property.
21.07. The provisions of this Article shall be deemed an express agreement
governing any case of damage or destruction of the Premises by fire or other
casualty, and Section 227 of the Real Property Law of the State of New York,
providing for such a contingency in the absence of an express agreement, and any
other law of like import, now or hereafter in force, shall have no application
in such case.
ARTICLE 22 - Eminent Domain
22.01. Except as otherwise provided in Section 22.05, if the whole of the
Building or the Premises shall be taken by condemnation or in any other manner
for any public or quasi-public use or purpose, this Lease shall terminate as of
the date of vesting of title on such taking (herein called the "Date of the
Taking"), and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such date.
22.02. Except as otherwise provided in Section 22.05,if any part of the
Building or the Land shall be so taken, this Lease shall be unaffected by such
taking, except that (a) Landlord may, at its option, terminate this Lease by
giving Tenant notice to that effect within 90 days after the Date of the Taking,
and (b) if 20% or more of the Premises shall be so taken and the remaining area
of the Premises shall not be reasonably sufficient for Tenant to continue
feasible operation of its business, Tenant may terminate this Lease by giving
Landlord notice to that effect within 90 days after the Date of the Taking. This
Lease shall terminate on the date that such notice from Landlord or Tenant to
the other shall be given, and the Fixed Rent and Additional Charges shall be
prorated and adjusted as of such termination date. Upon such partial taking and
this Lease continuing in force as to any part of the Premises, the Fixed Rent
and Additional Charges shall be adjusted according to the rentable area
remaining.
22.03. Except as otherwise provided in Section 22.05, Landlord shall be
entitled to receive the entire award or payment in connection with any taking
without deduction therefrom for any estate vested in Tenant by this Lease and
Tenant shall receive no part of such award. Tenant hereby expressly assigns to
Landlord all of its right, title and interest in and to every such award or
payment.
22.04. Except as otherwise provided in Section 22.05, in the event of any
taking of less than the whole of the Building and/or the Land which does not
result in termination of this Lease, Landlord, at its expense, and whether or
not any
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award or awards shall be sufficient for the purpose, shall proceed with
reasonable diligence to repair the remaining parts of the Building and the
Premises (other than those parts of the Premises which are the Tenant's
Property) to substantially their former condition to the extent that the same
may be feasible (subject to reasonable changes which Landlord shall deem
desirable) and so as to constitute complete and tenantable the Building and the
Premises.
22.05. If the temporary use or occupancy of all or any part of the
Premises is taken by condemnation or in any other manner for any public or
quasi-public use or purpose, this Lease and the Term shall remain unaffected by
such taking and Tenant shall continue to be responsible for all of its
obligations under this Lease (except to the extent prevented from so doing by
reason of such taking). In such event Tenant shall be entitled to claim, prove
and receive the entire award unless the period of temporary use or occupancy
extends beyond the expiration date of this Lease, in which event Landlord shall
be entitled to claim, prove and receive that portion of the award attributable
to the restoration of the Premises, and the balance of such award shall be
apportioned between Landlord and Tenant as of the expiration date of this Lease.
If such temporary use or occupancy terminates prior to the expiration date of
this Lease, Tenant, at its own expense, shall restore the Premises as nearly as
possible to its condition prior to the taking.
ARTICLE 23 - Surrender and Holding Over
23.01. On the last day of the Term, or upon any earlier termination of
this Lease, or upon any reentry by Landlord upon the Premises, Tenant shall quit
and surrender the Premises to Landlord "broom-clean" and in good order,
condition and repair, except for ordinary wear and tear and such damage or
destruction as Tenant is not required to repair or restore under this Lease, and
Tenant shall remove all of the Tenant's Property therefrom except as otherwise
expressly provided in this Lease. No act or thing done by Landlord or its agents
shall be deemed an acceptance of a surrender of the Premises, and no agreement
to accept such surrender shall be valid unless in writing and signed by
Landlord.
23.02. If Tenant remains in possession of the Premises after the
termination of this Lease without the execution of a new lease, Tenant, at the
option of Landlord, shall be deemed to be occupying the Premises as a tenant
from month to month, subject to all of the other terms and conditions of this
Lease insofar as the same are applicable to a month-to-month tenancy, but at a
monthly rental equal to the greater of (a) two times the monthly Fixed Rent last
payable by Tenant hereunder, plus all Additional Charges payable
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hereunder, and (b) Landlord's then asking price, on a monthly basis, for
comparable space in the Building (or, if Landlord has no asking price, the
monthly rental equal to the prevailing rate for comparable space in comparable
buildings in the vicinity of the Building). Nothing contained in this Section
shall (i) imply any right of Tenant to remain in the Premises after the
termination of this Lease without the execution of a new lease, (ii) imply any
obligation of Landlord to grant a new lease or (iii) be construed to limit any
right or remedy that Landlord has against Tenant as a holdover tenant or
trespasser.
23.03. Tenant expressly waives, for itself and for any person claiming
through or under Tenant, any rights which Tenant or any such person may have
under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to enforce
the terms and conditions of this Lease.
ARTICLE 24 - Default
24.01. This Lease and the Term are subject to the limitation that whenever
Tenant makes an assignment for the benefit of creditors, or files a voluntary
petition under any bankruptcy or insolvency law, or an involuntary petition
alleging an act of bankruptcy or insolvency is filed against Tenant under any
bankruptcy or insolvency law, or whenever a petition is filed by or against
Tenant under the reorganization provisions of the United States Bankruptcy Act
or under the provisions of any law of like import, or whenever a petition is
filed by Tenant under the arrangement provisions of the United States Bankruptcy
Act or under the provisions of any law of like import, or whenever a permanent
receiver of Tenant, or of or for the property of Tenant is appointed, then
Landlord (a) if such event occurs without the acquiescence of Tenant, as the
case may be, at any time after the event continues for 60 days, or (b) in any
other case at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the Term at the expiration of five days from the date
of service of such notice of intention, and upon the expiration of said five-day
period this Lease, whether or not the Term shall theretofore have commenced,
shall terminate with the same effect as if that day were the expiration date of
this Lease, but Tenant shall remain liable for damages as provided in Article
26.
24.02. This Lease is subject to the further limitations that:
(a) if Tenant defaults in the payment of any Fixed Rent or
Additional Charges, and such default
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continues for five days after notice from Landlord to Tenant, or
(b) if Tenant, whether by action or inaction, is in default of any
of its obligations under this Lease (other than a default in the payment
of Fixed Rent or Additional Charges) and such default continues and is not
remedied within 15 days after Landlord gives to Tenant a notice specifying
the same, or, in the case of a default which cannot with due diligence be
cured within a period of 15 days and the continuance of which for the
period required for cure will not (i) subject Landlord or any Superior
Lessor or Superior Mortgagee to prosecution for a crime (as more
particularly described in Section 9.02) or (ii) result in the termination
of any Superior Lease or foreclosure of any Superior Mortgage, if Tenant
does not, (1) within said 15-day period advise Landlord of Tenant's
intention to take all steps necessary to remedy such default, (2) duly
commence within said 15-day period, and thereafter diligently prosecute to
completion all steps necessary to remedy the default and (3) complete such
remedy within a reasonable time after the date of said notice of Landlord,
or
(c) if any event occurs or any contingency arises whereby this Lease
or the estate hereby granted or the unexpired balance of the Term would,
by operation of law or otherwise, devolve upon or pass to any person, firm
or corporation other than Tenant, except as expressly permitted by Article
8, or
(d) if Tenant (or any person which, directly or indirectly,
controls, is controlled by, or is under common control with Tenant)
defaults under any other lease with Landlord (or any person which,
directly or indirectly, controls, is controlled by, or is under common
control with Landlord) and such default is not remedied within the
applicable grace period, if any, provided therefor under such other lease,
or
(e) if the Sublease is terminated prior to December 30, 1997 and
Tenant is not entitled to exercise the option to terminate this Lease
pursuant to Section 1.11,
then in any of said cases Landlord may give to Tenant a notice of intention to
end the Term at the expiration of five days from the date of the service of such
notice of intention, and upon the expiration of said five days this Lease,
whether or not the Term theretofore had commenced, shall terminate with the same
effect as if that day were the expiration date of this
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Lease, but Tenant shall remain liable for damages as provided in Article 26.
ARTICLE 25 - Re-entry by Landlord
25.01. If Tenant defaults in the payment of any Fixed Rent or Additional
Charges, and such default continues for five days, or if this Lease terminates
as provided in Article 24, Landlord or Landlord's agents and employees may
immediately or at any time thereafter re-enter the Premises, or any part
thereof, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
person therefrom, to the end that Landlord may have, hold and enjoy the
Premises. The word "re-enter," as used herein, is not restricted to its
technical legal meaning. If this Lease is terminated under the provisions of
Article 24, or if Landlord re-enters the Premises under the provisions of this
Article 25, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord the Fixed Rent and Additional Charges payable up to
the time of such termination of this Lease, or of such recovery of possession of
the Premises by Landlord, as the case may be, and shall also pay to Landlord
damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
25.03. If this Lease terminates under the provisions of Article 24, or if
Landlord re-enters the Premises under the provisions of this Article, or in the
event of the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Landlord shall be entitled to retain
all monies, if any, paid by Tenant to Landlord, whether as advance rent,
security or otherwise, but such monies shall be credited by Landlord against any
Fixed Rent or Additional Charges due from Tenant at the time of such termination
or re-entry or, at Landlord's option, against any damages payable by Tenant
under Article 26 or pursuant to law.
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ARTICLE 26 - Damages
26.01. If this Lease is terminated under the provisions of Article 24, or
if Landlord re-enters the Premises under the provisions of Article 25, or in the
event of the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant1 Tenant shall pay to Landlord as
damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be, represents
the then value of the excess, if any, of (i) the aggregate amount of the
Fixed Rent which would have been payable by Tenant for the period
commencing with such earlier termination of this Lease or the date of any
such re-entry, as the case may be, and ending with the date contemplated
as the expiration date hereof if this Lease had not so terminated or if
Landlord had not so re-entered the Premises, over (ii) the aggregate
rental value of the Premises for the same period, or
(b) sums equal to the Fixed Rent and the Additional Charges which
would have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Premises, payable upon the due dates
therefor specified herein following such termination or such re-entry and
until the date contemplated as the expiration date hereof if this Lease
had not so terminated or if Landlord had not so re-entered the Premises,
provided, however, that if Landlord shall relet the Premises during said
period, landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord from such
reletting the expenses incurred or paid by Landlord in terminating this
Lease or in re-entering the Premises and in securing possession thereof,
as well as the expenses of reletting, including, without limitation,
altering and preparing the Premises for new tenants, brokers' commissions,
legal fees, and all other expenses properly chargeable against the
Premises and the rental therefrom, it being understood that any such
reletting may be for a period shorter or longer than what would have been
the remaining Term, but in no event shall Tenant be entitled to receive
any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection of
damages pursuant to this subdivision to a credit in respect of any net
rents from a reletting, except to the extent
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that such net rents are actually received by Landlord. If the Premises or
any part thereof should be relet in combination with other space, then
proper apportionment on a square foot basis shall be made of the rent
received from such reletting and of the expenses of reletting.
If the Premises or any part thereof is or are relet by Landlord for what would
have been the unexpired portion of the Term, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Premises, or part thereof, so relet during the
term of the reletting. Landlord shall not be liable in any way whatsoever for
its failure or refusal to relet the Premises or any part thereof, or if the
Premises or any part thereof are relet, for its failure to collect the rent
under such reletting, and no such refusal or failure to relet or failure to
collect rent shall release or affect Tenant's liability for damages or otherwise
under this Lease.
26.02. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the Term would have expired if it had not been so terminated
under the provisions of Article 24, or under any provisions of law, or had
Landlord not re-entered the Premises. Nothing herein contained shall be
construed to limit or preclude recovery by Landlord against Tenant of any sums
or damages to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the part
of Tenant. Nothing herein contained shall be construed to limit or prejudice the
right of Landlord to prove for and obtain as damages by reason of the
termination of this Lease or re-entry on the Premises for the default of Tenant
under this Lease an amount equal to the maximum allowed by any statute or rule
of law in effect at the time when, and governing the proceedings in which, such
damages are to be proved whether or not such amount be greater than, equal to,
or less than any of the sums referred to in Section 26.01. However, Tenant shall
not be liable to Landlord for any indirect, special or consequential damages.
26.03. In addition, if this Lease is terminated under the provisions of
Article 24, or if Landlord re-enters the Premises under the provisions of
Article 25, Tenant agrees that:
(a) the Premises then shall be in the same condition as that in
which Tenant has agreed to surrender the same to Landlord at the
expiration of the Term;
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(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this Lease for the making of any
Alteration or for restoring or rebuilding the Premises or the Building, or
any part thereof; and
(c) for the breach of any covenant of Tenant set forth above in this
Section 26.03, Landlord shall be entitled immediately, without notice or
other action by Landlord, to recover, and Tenant shall pay, as and for
liquidated damages therefor, the reasonable cost of performing such
covenant (as estimated by an independent contractor selected by Landlord).
ARTICLE 27 - Affirmative Waivers
27.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Premises or to have a continuance of this Lease after
being dispossessed or ejected therefrom by process of law or under the terms of
this Lease or after the termination of this Lease as provided in this Lease.
27.02. If Tenant is in arrears in payment of Fixed Rent or Additional
Charges, Tenant waives Tenant's right, if any, to designate the items to which
any payments made by Tenant are to be credited, and Landlord may apply any
payments made by Tenant to such items as Landlord sees fit, irrespective of and
notwithstanding any designation or request by Tenant as to the items to which
any such payments shall be credited.
27.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
including, without limitation, any claim of injury or damage, and any emergency
and other statutory remedy with respect thereto.
27.04. Tenant shall not interpose any counterclaim of any kind in any
summary proceeding commenced by Landlord to recover possession of the Premises
and shall not seek to consolidate such proceeding with any action which may have
been or will be brought by Tenant or any other person.
ARTICLE 28 - No Waivers
28.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or
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more of the obligations of this Lease, or to exercise any election herein
contained, shall not be construed as a waiver or relinquishment for the future
of the performance of such one or more obligations of this Lease or of the right
to exercise such election, but the same shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission. The receipt
by Landlord of Fixed Rent or Additional Charges with knowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
ARTICLE 29 - Curing Tenant's Defaults
29.01. If Tenant defaults in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of 15 days from the date
Landlord gives Tenant notice of the default.
29.02. Bills for any expenses incurred by Landlord in connection with any
such performance by it for the account of Tenant, and bills for all costs,
expenses and disbursements, including reasonable counsel fees, involved in
collecting or endeavoring to collect the Fixed Rent or Additional Charges or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, including any cost, expense and disbursement involved in
instituting and prosecuting summary proceedings or in recovering possession of
the Premises after default by Tenant or upon the expiration or sooner
termination of this Lease, and interest on all sums advanced by Landlord under
this Section and/or Section 29.01 at the Lease Interest Rate may be sent by
Landlord to Tenant monthly, and such amounts shall be due and payable in
accordance with the terms of such bills.
ARTICLE 30 - Broker
30.01. Tenant represents that no broker was instrumental in bringing about
or consummating this Lease and that Tenant had no conversations or negotiations
with any broker concerning the leasing of the Premises. Tenant shall indemnify
and hold harmless Landlord against and from any claims for any brokerage
commissions and all costs, expenses and liabilities in connection therewith,
including, without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by Tenant with any broker.
ARTICLE 31 - Notices
31.01. Any notice, consent, approval or other communication required or
permitted to be given, rendered or
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made by either party to the other shall be in writing (whether or not so stated
elsewhere in this Lease) and shall be deemed to have been properly given,
rendered or made only if either (a) sent by registered or certified mail, return
receipt requested, posted in a United States post office station or letter box
in the continental United States, or (b) hand delivered, in either event
addressed to the other party at the address hereinabove set forth, to the
attention of "Vice President" in the case of Tenant, and shall be deemed to
have been given, rendered or made either (i) on the first day after the day so
mailed, unless mailed outside of the State of New York, in which case it shall
be deemed to have been given, rendered or made on the third business day after
the day so mailed, or (ii) on the day received if so hand delivered. Either
party may, by notice as aforesaid, designate a different address or addresses
for notices, statements, demands, consents, approvals or other communications
intended for it. A duplicate original of any notice given to Landlord shall be
simultaneously and similarly sent by Tenant to the attention of Executive Vice
President, Keren Developments, Inc., 777 Old Saw Mill River Road, Tarrytown, New
York 10591-6705.
ARTICLE 32 - Estoppel Certificates
32.01. Each party shall, at any time and from time to time, if requested
by the other party with not less than 10 days' prior notice, execute and deliver
to the other a statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), certifying the
dates to which the Fixed Rent and Additional charges have been paid, stating
whether or not, to the best knowledge of the signer, the other party is in
default in performance of any of its obligations under this Lease, and, if so,
specifying each such default of which the signer shall have knowledge, and
stating whether or not, to the best knowledge of the signer, any event has
occurred which with the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such event, it being
intended that any such statement delivered pursuant hereto shall be deemed a
representation and warranty to be relied upon by the party requesting the
certificate and by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any such statement such
other information concerning this Lease as Landlord may reasonably request.
ARTICLE 33 - Execution and Delivery of Lease
33.01. Submission by Landlord of the within Lease for review and execution
by Tenant shall confer no rights nor impose any obligations on either party
unless and until both
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Landlord and Tenant shall have executed this Lease and duplicate originals
thereof shall have been delivered to the respective parties.
ARTICLE 34 - Recording of Lease
34.01. At the request of Landlord, Tenant shall promptly execute,
acknowledge and deliver to Landlord a memorandum in respect of this Lease and/or
any amendment or modification of this Lease sufficient for recording, setting
forth only the matters required to be set forth pursuant to Section 291-c of the
New York Real Property Law. Such memorandum shall not in any circumstance be
deemed to change or otherwise affect any of the terms of this Lease. Tenant
shall not record this Lease or said memorandum or any other document related
hereto.
ARTICLE 35 - Parking
35.01. Landlord shall, without charge to Tenant, provide and maintain, for
the non-exclusive use of Tenant's employees and invitees, parking areas
sufficient to accommodate at least 66 standard size automobiles in the area(s)
shown as "parking" on the plan attached hereto as Exhibit B. In the event
Landlord utilizes such parking areas for Landlord's development purposes,
Landlord will provide Tenant with substantially equivalent parking facilities.
ARTICLE 36 - Environmental Compliance
36.01. Tenant assumes sole and full responsibility for compliance with all
applicable Federal, state and local environmental statutes, regulations and
ordinances (including licensing and permitting) (herein called the
"Environmental Laws") in respect of its use of the Premises and agrees to
indemnify, defend, save and hold harmless Landlord and all Superior Lessors and
Superior Mortgagees, and its and their respective partners, directors, officers,
agents and employees from and against any and all claims, demands, losses and
liability (including reasonable attorneys' fees) resulting from any alleged or
actual violation thereof by Tenant or any of its subtenants or licensees or its
or their employees or contractors. Tenant assumes sole and full responsibility
for all present and future acts or omissions of Tenant or any of its subtenants
or licensees or its or their employees or contractors while at, near or on the
Project and covenants and agrees to indemnify, defend, save and hold harmless
Landlord and all Superior Lessors and Superior Mortgagees, and its and their
respective partners, directors, officers, agents and employees, from and against
any and all claims, demands, losses, and liability (including reasonable
attorneys' fees) resulting from any alleged or actual violation thereof,
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including, but not limited to, personal injury (and death resulting therefrom),
property damage, damage to natural resources, and strict liability under
Environmental Laws resulting from such acts. The provisions of this Section
36.01 shall survive the expiration or termination of this Lease.
ARTICLE 37 - Signs
37.01. Tenant may not place signs anywhere in the Project, including on
the exterior of the Building, without the prior written consent of Landlord.
ARTICLE 38 - Approval Contingency
38.01. This Lease shall not be effective until and unless approved in
writing by Swiss Bank and Carbide. If Swiss Bank or Carbide disapproves this
Lease, then this Lease shall be deemed null and void and of no effect. Landlord
shall promptly forward to Tenant a copy of any such approval and disapproval. If
either Swiss Bank or Carbide does not give its approval or disapproval within 60
days after the date hereof, either party may give notice of cancellation of this
Lease to the other after said 60-day period but prior to the giving of said
approval, and if either party gives such cancellation notice timely, this Lease
shall be deemed null and void and of no effect.
ARTICLE 39 - Intentionally Omitted
ARTICLE 40 - Partnership or Multi-Person Tenant
40.01. If the original Tenant herein named is a partnership (or is
comprised of two or more persons, individually or as co-partners of a
partnership) or if Tenant's interest in this Lease is assigned to a partnership
(or to two or more persons, individually or as co-partners of a partnership),
the following provisions shall apply: (a) the liability of each of the persons
at any time comprising Tenant shall be joint and several, (b) each of the
persons at any time comprising Tenant shall be bound by (i) any written
instrument executed by Tenant or any successor Tenant changing, modifying,
extending or discharging this Lease, in whole or in part, or surrendering all or
any part of the Premises to Landlord, (ii) any Notices given by Tenant or by any
of the persons comprising Tenant, and (iii) any statement executed by Tenant or
any of the persons comprising Tenant, pursuant to Section 32.01, (c) any notices
given to Tenant or to any of such persons shall be binding on Tenant and all
such persons, (d) if Tenant admits new partners, all of such new partners shall,
by their admission to Tenant, be deemed to have assumed joint and several
liability for the performance of all of Tenant's obligations under this Lease,
(e) Tenant shall give prompt
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notice to Landlord of the admission of any such new partners, and on demand of
Landlord shall cause each such new partner to execute and deliver to Landlord an
agreement in form satisfactory to Landlord wherein each such new partner assumes
joint and several liability for the performance of all of Tenant's obligations
under this Lease (but neither Landlord's failure to request any such agreement
nor the failure of any such new partner to execute or deliver any such agreement
to Landlord shall vitiate the provisions of clause (d) of this Section), and (f)
the death, adjudication of incompetency or withdrawal of an individual
comprising Tenant or of an individual partner shall not relieve him or his
personal representatives of any liability for the performance of Tenant's
obligations under this Lease.
ARTICLE 41 - Miscellaneous
41.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this Lease and which expressly refer to this Lease.
All understandings and agreements heretofore had between the parties are merged
in this Lease and any other written agreements made concurrently herewith, which
alone fully and completely express the agreement of the parties and which are
entered into after full investigation, neither party relying upon any statement
or representation not embodied in this Lease or any other written agreements
made concurrently herewith.
41.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of the abandonment is
sought. If Tenant shall at any time request Landlord to relet the Premises for
Tenant's account, Landlord or its agent is authorized to receive keys for such
purpose without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord of any liability for loss or damage to any
of the Tenant's Property in connection with such reletting.
41.03. Except as otherwise expressly provided in this Lease, the
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that (a) no
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violation of the provisions of Article 8 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Article shall not
be construed as modifying the conditions of limitation contained in Article 24.
No provision in this Lease shall be construed for the benefit of any third party
except as expressly provided herein.
41.04. The obligations of Tenant hereunder shall not be affected, impaired
or excused, nor shall Landlord have any liability to Tenant, because (a)
Landlord is unable to fulfill, or is delayed in fulfilling, any of its
obligations under this Lease by reason of strike, other labor trouble,
governmental preemption of priorities or other controls in connection with a
national or other public emergency, or shortage of fuel, supplies or labor, or
any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) of any failure or defect in the supply, quantity or character of
electricity, steam, oil, gas or water furnished to the Premises, by reason of
any requirement, act or omission of the public utility or other entity serving
the Building with electric energy, steam, oil, gas or water, or for any other
reason whether similar or dissimilar, beyond Landlord's reasonable control.
41.05. All references in this Lease to the consent or approval of Landlord
shall be deemed to mean only the written consent or approval of Landlord and no
consent or approval of Landlord shall be effective for any purpose unless such
consent or approval is set forth in a written instrument executed by Landlord.
If Tenant requests Landlord's consent and Landlord fails or refuses to give such
consent, Tenant shall not be entitled to any damages for any withholding by
Landlord of its consent, it being intended that Tenant's sole remedy shall be an
action for specific performance or injunction, and that such remedy shall be
available only in those cases where this Lease provides that Landlord may not
unreasonably withhold its consent or where as a matter of law Landlord may not
unreasonably withhold its consent.
41.06. If an excavation is made upon land adjacent to or under the
Building, or is authorized to be made, Tenant shall afford to the person causing
or authorized to cause such excavation, license to enter the Premises for the
purpose of performing such work as said person shall deem necessary or desirable
to preserve and protect the Building from injury or damage and to support the
same by proper foundations, without any claim for damages or liability against
Landlord and without reducing or otherwise affecting Tenant's obligations under
this Lease.
41.07. Tenant agrees that the exercise of its rights pursuant to the
provisions of Article 12 or of any other
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provisions of this Lease or the Exhibits hereto shall not be done in a manner
which would violate Landlord's union contracts affecting the Project, nor create
any work stoppage, picketing, labor disruption or dispute or any interference
with the business of Landlord or any tenant or occupant of the Project.
41.08. Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the State of
New York. If any provision of this Lease or the application thereof to any
person or circumstances shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that provision
to other persons or circumstances shall not be affected but rather shall be
enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation or other
provision of this Lease on Tenant's part to be performed, shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on any
other provision of this Lease. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
LANDLORD:
KEREN LIMITED PARTNERSHIP
By: Keren Management Limited
Partnership, General Partner
By: Keren Developments Inc.
By: /s/ James P. Brierley
---------------------------------
Name: James P. Brierley
Title: President
TENANT:
PROGENICS PHARMACEUTICALS, INC.
By: /s/ Robert A. McKinney
---------------------------------
Name: ROBERT A. McKINNEY
Title: (Vice) President
Tenant's Federal Identification Number
______________________________________
47
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STATE OF NEW YORK )
: ss.:
COUNTY OF WESTCHESTER )
On the 30th day of June, 1994, before me personally came James P. Brierley
to me known, who, being by me duly sworn, did depose and say that he resides at
Red Fox Lane, Brewster, New York; that he is the Vice President of Keren
Developments Inc. which corporation is the general partner of Keren Management
Limited Partnership, which limited partnership is the general partner of KEREN
LIMITED PARTNERSHIP, the partnership described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of said corporation (Keren Developments Inc.) as general partner of
Keren Management Limited Partnership, as general partner of Keren Limited
Partnership.
/s/ Mary C. Lenni
--------------------------
Notary Public
MARY C. LENNI
Notary Public, State of New York
No. 4700067
Appointed for Westchester County
Commission Expires 11/30/95
STATE OF NEW YORK )
: ss.:
COUNTY OF Westchester )
On the 28th day of June 1994, before me personally came ROBERT A. MCKINNEY
to me known, who, being by me duly sworn, did depose and say that he resides at
___________________________________,________________________; that he is the
(Vice) President of PROGENICS PHARMACEUTICALS, INC., the corporation described
in and which executed the foregoing instrument; and that he signed his name
thereto by order of the board of directors of said corporation.
/s/ Gladys Leiva
--------------------------
Notary Public
GLADYS LEIVA
Notary Public, State of New York
No 4895173
Qualified in Westchester County
Commission Expires May 18, [Illegible]
<PAGE>
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors and elevators
servicing the Building are limited to ingress to and egress from such tenant's
premises for the tenant and its employees, licensees and invitees, and no tenant
shall use, or permit the use of, the entrances, corridors or elevators for any
other purpose. No tenant shall invite to the tenant's premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere with
the use and enjoyment of any of the plazas, entrances, corridor, elevators and
other facilities of the Building by any other tenants. Fire exits and stairways
are for emergency use only, and they shall not be used for any other purpose by
the tenants, their employees, licensees or invitees. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of any of the sidewalks,
plazas, entrances, corridors, elevators, fire exits or stairways of the
Building. Landlord reserves the right to control and operate the public portions
of the Building and the public facilities, as well as facilities furnished for
the common use of the tenants, in such manner as it in its reasonable judgment
deems best for the benefit of the tenants generally.
2. Landlord may refuse admission to the Building outside of Business Hours
on Business Days (as such terms are defined in the lease to which this Exhibit
is attached) to any person not known to the watchman in charge or not having a
pass issued by Landlord or the tenant whose premises are to be entered or not
otherwise properly identified, and Landlord may require all persons admitted to
or leaving the Building outside of Business Hours on Business Days to provide
appropriate identification. Landlord will supply identification cards and be
reimbursed by Tenant at Landlord's cost plus 5%. Tenant shall be responsible for
all persons for whom it issues any such pass and shall be liable to Landlord for
all acts or omissions of such persons. Tenant shall promptly notify Landlord in
writing of any lost identification cards and will reimburse Landlord at cost
plus 5% for replacement of identification cards. Any person whose presence in
the Building at any time shall, in the judgment of Landlord, be prejudicial to
the safety, character or reputation of the Building or of its tenants may be
denied access to the Building or may be ejected therefrom. During any invasion,
riot, public excitement or other commotion, Landlord may prevent all access to
the Building by closing the doors or otherwise for the safety of the tenants and
protection of property in the Building.
3. No tenant shall obtain or accept for use in its premises towel,
barbering, bootblacking, floor polishing,
EXHIBIT A
Page 1
<PAGE>
cleaning or other similar services from any persons reasonably prohibited by
Landlord in writing from furnishing such services. Such services shall be
furnished only at such hours, and under such reasonable regulations, as may be
fixed by Landlord from time to time.
4. The cost of repairing any damage to the public portions of the Building
or the public facilities or to any facilities used in common with other tenants,
caused by a tenant or its employees, agents, contractors, licensees or invitees,
shall be paid by such tenant.
5. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds,' shades or screens which are different
from the standards adopted by Landlord for the Building shall be attached to or
hung in, or used in connection with, any exterior window or door of the premises
of any tenant, without the prior written consent of Landlord. Such curtains,
blinds, shades or screens must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
6. No lettering, sign, advertisement, notice or object shall be displayed
in or on the exterior windows or doors, or on the outside of any tenant's
premises, or at any point inside any tenant's premises where the same might be
visible outside of such premises, without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove the same without any liability, and may charge the expense incurred in
such removal to the tenant violating this rule. Interior signs, elevator cab
designations and lettering on doors and the Building directory shall, if and
when approved by Landlord, inscribed, painted or affixed for each tenant by
Landlord at the expense of such tenant, and shall be of a size, color and style
acceptable to Landlord.
7. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window sills or on the
peripheral air conditioning enclosures, if any.
8. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
9. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by
EXHIBIT A
Page 2
<PAGE>
any tenant. Nothing shall be done or permitted in the premises of any tenant
which would impair or interfere with the use or enjoyment by any other tenant of
any other space in the Building.
10. Additional locks or bolts of any kind which shall not be operable by
the Grand Master Key for the Building shall not be placed upon any of the doors
or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said Grand Master
Key. Additional keys for a tenant's premises and toilet rooms shall be procured
only from Landlord who may make a reasonable charge therefor. Each tenant shall,
upon the termination of its tenancy, turn over to Landlord all keys of stores,
offices and toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by Landlord, such
tenant shall pay to Landlord the cost thereof.
11. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators, and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move safes and other heavy objects shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a Master Rigger's license.
Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule, including a reasonable charge for overhead and profit, shall be
paid by tenant to Landlord, on demand.
12. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or the lease of which
this Exhibit is a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass, listing such
package or object or matter, from the tenant from whose premises the package or
object or matter is being removed, but the establishment and enlargement of such
requirement shall not impose any responsibility on Landlord for the protection
of any tenant against the removal of property from the premises of such tenant.
Landlord shall in no way be liable to any tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the premises
or the Building under the provisions of this Rule or of Rule 2 hereof.
EXHIBIT A
Page 3
<PAGE>
13. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
storage, manufacture, or sale of liquor, narcotics, dope, tobacco in any form,
or as a barber, beauty or manicure shop, or as a school. No tenant shall use or
permit its premises or any part thereof to be used for manufacturing or the sale
at retail or auction of merchandise, goods or property of any kind.
14. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's reasonable judgment, tends
to impair the reputation of the Building or its desirability as a building for
others, and upon written notice from Landlord, such tenant shall refrain from
and discontinue such advertising or identifying sign.
15. Landlord shall have the right to prescribe the weight and position of
safes and other objects of excessive weight, and no safe or other object whose
weight exceeds the lawful load for the area upon which it would stand shall be
brought into or kept upon any tenant's premises. If, in the judgment of
Landlord, it is necessary to distribute the concentrated weight of any heavy
object, the work involved in such distribution shall be done at the expense of
the tenant and in such manner as Landlord shall determine.
16. No machinery or mechanical equipment may be installed or operated in
any tenant's premises so as to disturb other tenants; but machines and
mechanical equipment which may be permitted to be installed and used in a
tenant's premises shall be so equipped, installed and maintained by such tenant
as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
17. Landlord, its contractors, and their respective employees, shall have
the right to use, without charge therefor, all light, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant.
18. No premises of any tenant shall be used for lodging or sleeping or for
any immoral or illegal purpose.
19. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
EXHIBIT A
Page 4
<PAGE>
20. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
21. No tenant shall cause or permit any unusual or objectionable odors to
emanate from its premises which would annoy other tenants or create a public or
private nuisance. No cooking shall be done in the premises of any tenant except
as is expressly permitted in such tenant's lease.
22. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating, ventilating, air conditioning, cleaning or other servicing of
the Building or the premises, or the use or enjoyment by any other tenant of any
other premises, nor shall there be installed by any tenant any ventilating,
air-conditioning, electrical or other equipment of any kind which, in the
reasonable judgment of Landlord, might cause any such impairment or
interference.
23. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenant who, or
whose servants, employees, agents, visitors or licensees shall have, caused the
same. Any cuspidors or containers or receptacles used as such in the premises of
any tenant or for garbage or similar refuse, shall be emptied, cared for and
cleaned by and at the expense of such tenant.
24. All entrance doors in each tenant's premises shall be left locked and
all windows shall be left closed by the tenant when the tenant's premises are
not in use. Entrance doors shall not be left open at any time. Each tenant,
before closing and leaving its premises at any time, shall turn out all lights.
25. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building.
26. All windows in each tenant's premises shall be kept closed, and all
blinds therein above the ground floor shall be lowered as reasonably required
because of the position of the sun, during the operation of the Building
air-conditioning system to cool or ventilate the tenant's premises.
EXHIBIT A
Page 5
<PAGE>
If Landlord shall elect to install any energy saving film on the windows of any
premises or to install energy saving windows in place of the present windows,
each tenant shall cooperate with the reasonable requirements of Landlord in
connection with such installation and thereafter the maintenance and replacement
of the film and/or windows and permit Landlord to have access to the tenant's
premises at reasonable times during Business Hours to perform such work.
27. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its reasonable
judgment, it deems it necessary, desirable or proper for its best interest and
for the best interests of the tenants generally, and no alteration or waiver of
any rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. Landlord shall not be responsible to any
tenant for the nonobservance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Building.
EXHIBIT A
Page 6
<PAGE>
EXHIBIT B
[Site Plan]
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 11.1
PROGENICS PHARMACEUTICALS, INC.
STATEMENT OF COMPUTATION OF LOSS PER SHARE
Year Ended December 31,
-------------------------------------------------------------------------------------------
1993 1994 1995
--------------------------- ----------------------------- -------------------------------
Primary Fully Diluted Primary Fully Diluted Primary Fully Diluted
------------- ------------- ------------- -------------- ------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Net loss $(2,394,617) $(2,394,617) $(3,411,734) $(3,411,734) $(4,503,496) $(4,503,496)
Interest expense recognized in
connection with convertible debt
assumed to have been converted 23,671
Reduction of net loss assuming a
portion of the proceeds from the
exercise of options and warrants
was used to repay a term note and
capital lease obligations and to
invest in short-term government
securities in accordance with the
treasury stock method 42,700 365,597 312,360
-------------------------------------------------------------------------------------------
Net loss $(2,394,617) $(2,351,917) $(3,411,734) $(3,046,137) $(4,503,496) $(4,167,465)
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Weighted average number of
common shares outstanding 2,249,675 2,249,675 2,249,675 2,249,675 2,264,839 2,264,839
Shares issuable upon assumed conversion
of convertible debt and preferred
stock 2,339,948 2,953,554 3,272,943
Shares issuable upon exercise
of outstanding options and
warrants 1,087,748 2,462,494 2,052,306
Shares assumed to be repurchased
under the treasury stock method (449,935) (449,935) (458,935)
-------------------------------------------------------------------------------------------
Weighted average number of
common shares used in computing
per share data 2,249,675 5,227,436 2,249,675 7,215,788 2,264,839 7,131,153
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Net loss per share $ (1.06) $ (0.45) $ (1.52) $ (0.42) $ (1.99) $ (0.58)
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 11.2
PROGENICS PHARMACEUTICALS, INC.
STATEMENT OF COMPUTATION OF LOSS PER SHARE
Nine Months Ended September 30,
------------------------------------------------------------------------------------------
1995 1996
------------------------------------------ -------------------------------------------
Primary Fully Diluted Primary Fully Diluted
----------------- -------------------- -------------------- ------------------
<S> <C> <C> <C> <C>
Net loss $ (3,070,640) $ (3,070,640) $ (3,481,574) $ (3,481,574)
Reduction of net loss assuming a
portion of the proceeds from the
exercise of options and warrants
was used to repay a term note and
capital lease obligations and to
invest in short-term government
securities in accordance with the
treasury stock method 326,578 257,487
------------------------------------------------------------------------------------------
Net loss $ (3,070,640) $ (2,744,062) $ (3,481,574) $ (3,224,087)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Weighted average number of
common shares outstanding 2,254,784 2,254,784 2,294,675 2,294,675
Shares issuable upon assumed conversion
of convertible debt and preferred
stock 3,230,650 4,152,563
Shares issuable upon exercise
of outstanding options and
warrants 2,110,938 1,993,063
Shares assumed to be repurchased
under the treasury stock method (458,935) (458,935)
------------------------------------------------------------------------------------------
Weighted average number of
common shares used in computing
per share data 2,254,784 7,137,437 2,294,675 7,981,366
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Net loss per share $ (1.36) $ (0.38) $ (1.52) $ (0.40)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 11.3
PROGENICS PHARMACEUTICALS, INC.
PRO FORMA STATEMENT OF COMPUTATION OF LOSS PER SHARE
Year Ended Nine Months
December 31, Ended September 30,
1995 1996
------------- -------------------
<S> <C> <C>
PRO FORMA IN ACCORDANCE
WITH THE SECURITIES AND
EXCHANGE COMMISSION
STAFF ACCOUNTING
BULLETIN NO. 64
Net loss $ (4,503,496) $ (3,481,574)
------------- -------------
------------- -------------
Weighted average number
of common shares
outstanding 2,294,675 2,294,675
Shares issuable upon
assumed conversion
of preferred stock 4,259,878 4,259,878
Shares issuable upon
exercise of outstanding
options and warrants 355,687 355,687
Shares assumed to be
repurchased under the
treasury stock method (775,519) (775,519)
------------- -------------
Weighted average number
of common shares used
in computing per share data 6,134,721 6,134,721
------------- -------------
------------- -------------
Net loss per share $ (0.73) $ (0.57)
------------- -------------
------------- -------------
</TABLE>
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-1
(Amendment No. 1) (File No. 333-13627) of our report dated October 28, 1996
on our audits of the financial statements of Progenics Pharmaceuticals, Inc.
We also consent to the reference to our firm under the captions "Selected
Financial Data" and "Experts."
Coopers & Lybrand L.L.P.
New York, New York
October 28, 1996
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<CIK> 0000835887
<NAME> PROGENICS
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> YEAR 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1996
<PERIOD-END> DEC-31-1995 SEP-30-1996
<CASH> 559 1,746
<SECURITIES> 0 0
<RECEIVABLES> 0 0
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 690 1,886
<PP&E> 2,144 1,727
<DEPRECIATION> 1,178 837
<TOTAL-ASSETS> 1,736 2,841
<CURRENT-LIABILITIES> 671 992
<BONDS> 0 0
0 0
5 6
<COMMON> 3 3
<OTHER-SE> 844 1,659
<TOTAL-LIABILITY-AND-EQUITY> 1,736 2,841
<SALES> 50 67
<TOTAL-REVENUES> 821 426
<CGS> 0 0
<TOTAL-COSTS> 0 0
<OTHER-EXPENSES> 5,238 3,868
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 87 40
<INCOME-PRETAX> (4,504) (3,482)
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (4,504) (3,482)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (4,504) (3,482)
<EPS-PRIMARY> (1.99) (1.52)
<EPS-DILUTED> (0.58) (0.40)
</TABLE>
