EXHIBIT 10.11
CYTOGEN CORPORATION
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
(last amended as of June, 2002)
1. Purpose; Effective Date.
(a) The purposes of this Plan are to further the interests of Cytogen
Corporation (the "Company") and its Subsidiaries by retaining the services of
persons now serving as officers and other employees, consultants and advisors of
the Company and its Subsidiaries, attracting and retaining the services of
persons capable of serving as employees and consultants of the Company and its
Subsidiaries and providing incentives for such employees and consultants to
exert maximum efforts to promote the success of the Company and its
Subsidiaries.
(b) The effective date of this Plan is March 28, 1995. This Plan will
become effective on that date, subject to approval of the Plan not later than
September 30, 1995 by a majority of the votes cast at a duly held stockholders
meeting at which a quorum representing a majority of all outstanding voting
stock is, either in person or by proxy, present and voting on the Plan. Nothing
in this Plan shall affect the rights or obligations of holders of options
granted under any other Company stock option plan.
2. Definitions.
Whenever used in this Plan, the following terms will have the meanings
set forth in this paragraph:
"Board of Directors" means the Board of Directors of the Company.
"Code" means the U.S. Internal Revenue Code of 1986, as amended.
"Committee" means the committee described in paragraph 3.
"Common Stock" means the common stock, par value $. 01 per share, of
the Company.
"Date of Grant" means with respect to any Option the date the Committee
approves the grant of the Option or such later date as may be specified by the
Committee as the date the option will become effective.
"Eligible Consultant" means a consultant providing services to, and who
is not an employee of, the Company or any of its Subsidiaries.
"Employee" means any person employed by the Company or any of its
Subsidiaries (including, without limitation, a person employed by the Company or
any of its Subsidiaries who is also an officer or director of the Company or any
of its Subsidiaries).
"Exercise Price" means with respect to any Option the price per share
which must be paid upon exercise of the Option.
"Fair Market Value" means (i) if the Common Stock is traded in a market
in which actual transactions are reported, the mean of the high and low prices
at which the Common Stock is reported to have traded on the relevant date in all
markets on which trading in the Common Stock is reported, or if there is no
reported sale of the Common Stock on the relevant date, the mean of the highest
reported bid price and lowest reported asked price for the Common Stock on the
relevant date, (ii) if the Common Stock is Publicly Traded but only in markets
in which there is no reporting of actual transactions, the mean of the highest
reported bid price and the lowest reported asked price for the Common Stock on
the relevant date, or (iii) if the Common Stock is not Publicly Traded, the
value of a share of Common Stock as determined by the most recent valuation
prepared by an independent expert at the request of the Committee.
"Incentive Stock Option" means any Option that at the time of the grant
qualifies and is designated as an incentive stock option within the meaning of
Section 422 of the Code.
"Non-Employee Director" means a member of the Board who is a
"Non-Employee Director" within the meaning of Rule 16b-3(b)(3) under the
Securities Exchange Act of 1934, as amended, or any successor provision.
"Non-Qualified Option" means any Option that is not an Incentive Stock
Option.
"Option" means any Incentive Stock Option or Non-Qualified Option
granted under this Plan.
"Option Agreement" means an agreement in such form as may be determined
by he Committee, executed and delivered by the Company to the holder of any
Option with respect to that Option.
"Outside Director" means a member of the Board who is not a current
employee of the Company (or a related entity), is not a former employee who is
receiving compensation for prior services (other than benefits under a
tax-qualified retirement plan), was not an officer of the Company at any time,
and is not currently receiving remuneration, either directly or indirectly, in
any capacity other than as a director. An Outside Director shall satisfy such
criteria as required under Section 162(m) of the Code.
"Plan" means the Cytogen Corporation 1995 Stock Option Plan, as
amended.
"Publicly Traded" means, with respect to any class of stock, that the
class of stock is required to be registered under Section 12 of the Securities
Exchange Act of 1934, as amended, or that stock of that class has been sold
within the preceding 12 months in an underwritten public offering.
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"Subsidiary" means any corporation that, at the time in question is a
subsidiary corporation of the Company within the meaning of section 424(f) of
the Code.
"Ten Percent Shareholder" means, with respect to the grant of any
Option, a person who at the Date of Grant is the beneficial owner of stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company.
"Termination of Service" means (a) the time when the employee-employer
relationship between an Employee and the Company ceases to exist for any reason,
or (b) the time when an officer who is not also an Employee ceases to be an
officer of the Company for any reason or (c) the time when an Eligible
Consultant ceases to be such a consultant for any reason, including, but not
limited to, a termination by resignation, discharge, death, Total Disability or
retirement. Any leave of absence taken with the consent of the Company for a
period of not more than 90 days shall not be a Termination of Service, or if
longer, so long as the optionee's right to reemployment with the Company is
guaranteed by statute or contract. If the period of leave exceeds 90 days and if
the right to reemployment is not guaranteed by statute or contract, the
Termination of Service will be deemed to occur on the 91st day of the leave.
"Total Disability" means inability of an Employee or Eligible
Consultant to engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months. All determinations as to the date and extent
of disability of an Employee or Eligible Consultant will be made by the
Committee.
3. Administration.
(a) This Plan shall be administered by a Committee, which shall be composed
of not less than two Outside Directors who are also Non-Employee Directors. The
Committee may, from time to time, adopt or rescind rules and regulations for
carrying out the provisions and purposes of this Plan. Subject to the express
provisions of this Plan, the Committee shall have sole authority, in its
absolute discretion, to determine which Employees and Eligible Consultants shall
receive Options, the time when Options shall be granted, the terms and
provisions of the Options (which may differ from one another) and to do
everything necessary or appropriate to administer this Plan, including, without
limitation, interpreting the provisions of this Plan and the Options. All
determinations made by the Committee with respect to this Plan and the Options
shall be final, binding and conclusive.
(b) No member of the Committee shall be liable for any act or omission of
the Committee or any other member of the Committee, or for any act or omission
on his own part, in connection with the administration of this Plan, unless it
resulted from the member's own willful misconduct.
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4. Persons Eligible to Receive Options.
(a) Options may be granted under this Plan only to persons who at the Date
of Grant either (i) are Employees or Eligible Consultants of the Company or any
of its Subsidiaries or (ii) have agreed to become Employees or Eligible
Consultants of the Company or any of its Subsidiaries, and, in either case, are
determined by the Committee to be of substantial importance to the Company or
any of its Subsidiaries.
(b) Options granted to persons who are not yet Employees or Eligible
Consultants at the Date of Grant may not be exercised until the optionee has
become an Employee or Eligible Consultant, and shall expire if the optionee
fails to commence service as an Employee or Eligible Consultant within six
months (or such other period as the Committee may determine) after the Date of
Grant.
(c) Incentive Stock Options may be granted only to persons who are
Employees at the Date of Grant, and only on such terms as are provided in
paragraphs 6, 7 and 8 hereof.
(d) No Employee or Eligible Consultant to whom Options may be granted under
this Plan may be granted Options to purchase more than 200,000 shares in any one
calendar year.
5. Stock Subject to the Plan.
(a) Subject to any adjustment as provided in paragraph 9, the maximum
number of shares of Common Stock as to which Options may be granted under this
Plan is 4,502,635 shares reduced by the number of outstanding options granted
under the Cytogen Corporation 1989 Employee Stock Option Plan (the "1989 Plan")
that are exercised after the effective date of this Plan. If any Option expires
or is cancelled or surrendered without being exercised in full, the number of
shares as to which the Option is not exercised will once again become shares as
to which new Options may be granted. The Common Stock which is issued on
exercise of Options may be authorized but unissued shares or shares which have
been issued and reacquired by the Company.
(b) For administrative purposes only, the Committee shall establish an
account indicating the number of shares of Common Stock as to which Options may
then be granted under this Plan (the "Current Account"), and the Committee may
issue Options only with respect to the shares of Common Stock available for
grant as set forth in the Current Account. The Current Account shall contain the
number of shares available for grant calculated as follows: (a) 4,502,635, minus
(b) the number of shares of Common Stock subject to options granted under the
1989 Plan that are exercised after the effective date of this Plan, minus (c)
the number of shares of Common Stock subject to outstanding options granted
under the 1989 Plan and this Plan, plus (d) the number of shares of Common Stock
subject to outstanding options granted under the 1989 Plan and/or this Plan that
expire, are cancelled or surrendered without being exercised in full.
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6. Grants of Options.
(a) Subject to paragraph 4(d), the Committee will have complete discretion
to determine when, and to which Employees or Eligible Consultants, Options are
to be granted, the number of shares of Common Stock to which Options granted to
each Employee or Eligible Consultant, will relate, whether and to what extent
Options granted to an Employee or Eligible Consultant, will be Incentive Stock
Options or Non-Qualified Options and, subject to the provisions of paragraphs 7
and 8, the Exercise Price and the term of each Option. The Committee may, in its
discretion at the time of granting the Option, provide that the Exercise Price
may be paid in cash, by the surrender of Common Stock, by a promissory note
bearing an interest rate not less than the market rate of interest at such time,
or by other means; subject, however, to any requirements of applicable law which
may limit the type or amount of such non-cash consideration. If payment by
promissory note is permitted: (i) the optionee shall be required to make a cash
payment upon exercise of the Option of not less than 20% of the Exercise Price;
(ii) the note shall provide for full recourse against the maker; and (iii) the
note shall be payable in full prior to its stated maturity upon the optionee's
Termination of Service for any reason other than death or Total Disability.
(b) Any Options which are not designated as Incentive Stock Options when
they are granted will be Non-Qualified Options.
(c) Promptly after the Date of Grant of each Option, the Company shall
cause an Option Agreement to be executed and delivered to the holder of the
Option. The Option Agreement shall clearly state whether the Option granted is
or is not an Incentive Stock Option. Separate Option Agreements shall be used
for Incentive Stock Options and Non-Qualified Stock Options.
(d) Except as otherwise determined by the Committee, and subject to the
requirements of applicable law, the entire Exercise Price received by the
Company upon the exercise of an option shall constitute stated capital to the
extent of the aggregate par value of the Common Stock issued upon exercise of
the Option.
(e) Any Option granted under this Plan prior to the date the Plan is
approved by the Company's stockholders shall not be exercisable unless and until
the Plan is so approved.
7. Option Provisions.
(a) Exercise Price. No consideration shall be payable by any optionee for
the grant of an Option. Subject to the provisions of paragraph 7(a)(i) and
paragraph 8, the Exercise Price of each Option will be as determined by the
Committee.
(i) The Committee shall not grant any Option (or stock
appreciation right, if otherwise permissible) with an exercise price
that is less than 100% of the Fair Market Value of the underlying
stock on the date of grant or reduce the exercise price of any Option
(or stock appreciation right, if otherwise permissible) granted or to
be granted under the Plan; and
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(ii) The Committee shall not: (1) cancel and re-grant Options at
a lower exercise price (including entering into any "6 month and 1
day" cancellation and re-grant scheme), whether or not the cancelled
Options are put back into the available pool for grant; (2) replace
underwater Options with restricted stock in an exchange, buy-back or
other scheme; or (3) replace any Options with new Options having a
lower exercise price or accelerated vesting schedule in an exchange,
buy-back or other scheme.
(b) Term. The term of each Option will be as determined by the Committee,
but in no event will the term of an Option be longer than ten years from the
Date of Grant, or five years in the case of an Incentive Stock Option granted to
a Ten Percent Shareholder. Options may not be exercised before six months after
the Date of Grant. Options will cease to be exercisable prior to the expiration
of their term under certain circumstances as provided in paragraphs 7(f), (g),
and (h). Subject to the foregoing, and to any vesting or other conditions
imposed at the time it is granted, an Option may be exercised in whole or in
part at any time, or from time to time, during its term.
(c) Manner of Exercise. To exercise an Option, the person exercising the
Option must deliver to the Company, at its principal office:
(i) a notice of exercise, which states the extent to which the
Option is being exercised;
(ii) a certified or bank cashier's check in an amount, or Common
Stock with a Fair Market Value, equal to the Exercise Price of the
Option times the number of shares as to which it is being exercised,
or consideration in such other form as may be permitted under the
terms on which the Option is granted; and
(iii) a certified or bank cashier's check equal to any
withholding taxes the Company is required to pay because of the
exercise of the Option.
The Committee may permit an Employee, as an alternative to making the
payment described in clause (iii), to authorize the Company to
withhold a sum equal to the withholding taxes the Company is required
to pay from the Employee's salary and bonus payments over a period of
not more than six months (or such longer period as the Company may
approve). The date on which the Company receives all the items
specified in this subsection will be the date on which the Option is
exercised to the extent described in the notice of election.
(d) Delivery of Stock Certificates. As promptly as practicable after an
Option is exercised, the Company will deliver to the person who exercises the
Option certificates, registered in that person's name, representing the number
of shares of Common Stock which were purchased by the exercise of the Option.
Each certificate may bear a legend to indicate, if applicable, that (i) the
Common Stock represented by the certificate was issued in a transaction which
was not registered under the Securities Act of 1933, as amended, and may only be
sold or transferred in a transaction which is registered under that Act or is
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exempt from the registration requirements of that Act, and (ii) the Common Stock
represented by the certificate is subject to the obligation of the holder to pay
any unpaid balance of the Exercise Price (whether pursuant to a promissory note
or otherwise), and/or that the Common Stock is pledged to secure such an
obligation.
(e) Nontransferability of Options. During the lifetime of the person to
whom an Option is issued, the Option may be exercised only by that person or his
or her guardian or legal representative. An Option may not be assigned, pledged
or hypothecated in any way, will not be subject to execution, and will not be
transferable otherwise than by will or the laws of descent and distribution. The
Company will not recognize any attempt to assign, transfer, pledge, hypothecate
or otherwise dispose of an Option contrary to the provisions of this Plan, or
any levy of any attachment or similar process upon any Option, and, except as
expressly stated in this Plan, the Company will not be required to, and will
not, issue Common Stock on exercise of an Option to anyone who claims to have
acquired that Option from the person to whom it was granted.
(f) Termination of Service of Holder of Option Other Than Because of Total
Disability or Death. If there is a Termination of Service of a person to whom an
Option has been granted, other than by reason of the person's death or Total
Disability, each Option held by the person may be exercised (if otherwise
exercisable) until the earlier of (i) the end of the three-month period
immediately following the date of the Termination of Service, (ii) the
expiration of the term specified in the Option, or (iii) such earlier time as
may be determined by the Committee at the time of granting the Option.
(g) Total Disability of Holder of Option. If there is a Termination of
Service of a person to whom an Option has been granted by reason of his or her
Total Disability, each Option held by the person may be exercised (if otherwise
exercisable) until the earlier of (i) the end of the one-year period immediately
following the date of the Termination of Service, (ii) the expiration of the
term specified in the Option, or (iii) such earlier time as may be determined by
the Committee at the time of granting the Option.
(h) Death of Holder of Option. If there is a Termination of Service of a
person to whom an Option has been granted by reason of his or her death, or a
former Employee or Eligible Consultant dies following the date of his or her
Termination of Service but at a time when an Option still would be exercisable
by that person but for the death of the person, each Option held by the person
at the time of his or her death may be exercised by the person or persons to
whom the Option passed by will or by the laws of descent and distribution (but
by no other persons) until the earlier of (i) the end of the one-year period
immediately following the date of death (or such other period as may be
determined by the Committee at the time of granting the Option), (ii) the
expiration of the term specified in the Option, or (iii) if the death occurs
after the Termination of Service, the end of the period in which the Option
could be exercised under paragraph 7(f) or (g).
8. Special Provisions Relating to Incentive Stock Options.
No Incentive Stock Option may be granted after March 27, 2005. The
Exercise Price of an Incentive Stock Option will be not less than 100% of the
Fair Market Value of the Common Stock on the Date of Grant of the Option. An
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Incentive Stock Option may not be granted to a person who, at the time the
Option is granted, is a Ten Percent Shareholder, unless (i) the Exercise Price
of the Option is at least 110% of the Fair Market Value of the Common Stock on
the Date of Grant and (ii) the Option by its terms is not exercisable after the
expiration of five years from the Date of Grant. To the extent that the
aggregate Fair Market Value (determined at the time an Incentive Stock Option is
granted) of the Common Stock with respect to which Incentive Stock Options are
first exercisable by an Employee during any calendar year (under this Plan and
any other incentive stock option plans of the Company) exceeds $100,000, such
Options shall be treated as Non-Qualified Options.
9. Recapitalization.
(a) The existence of outstanding Options shall not affect in any way the
right or power of the Company or its stockholders to make or authorize any or
all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business or any other corporate act or proceeding, whether
of a similar character or otherwise. Unless otherwise determined by the Board,
the issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, for cash or property, or for
labor or services either upon direct sale or upon the exercise of rights or
warrants to subscribe therefor, or on conversion of shares or obligations of the
Company convertible into such shares or other securities, shall not affect, and
no adjustment by reason thereof shall be made with respect to, the number, class
or price of shares of Common Stock then subject to outstanding Options.
(b) If as a result of any (i) reorganization or liquidation of the Company
or (ii) reclassification of the Company's capital stock, or (iii) consolidation
or merger of the Company with or into another corporation, or sale of all or
substantially all the assets of the Company (a reorganization or liquidation of
the Company or reclassification of the Company's capital stock, or a merger,
consolidation or sale of the type described in this subsection being a
"Corporate Transaction") while an Option is outstanding, the holders of the
Common Stock become entitled to receive with respect to their Common Stock,
securities or assets other than, or in addition to, their Common Stock, upon
exercise of that Option the holder will receive what the holder would have owned
if the holder had exercised the Option immediately before the Corporate
Transaction which occurred while the Option was outstanding and had not disposed
of anything the holder would have received as a result of that and all
subsequent Corporate Transactions.
10. Rights of Option Holder.
(a) The holder of an Option will not have any rights as a stockholder by
reason of holding that Option. Upon exercise of an Option, the holder will be
deemed to acquire the rights of a stockholder when, but not before, the issuance
of Common Stock as a result of the exercise is recorded in the stock records of
the Company.
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(b) Nothing in this Plan or in the grant of an Option will confer upon any
Employee the right to continue in the employment of the Company or will
interfere with or restrict in any way the rights of the Company to discharge any
Employee at any time for any reason whatsoever, with or without cause, nor will
it impose any obligation on the Employee to remain in the employ of the Company.
11. Laws and Regulations.
The obligation of the Company to sell and deliver shares of Common
Stock on exercise of Options will be subject to the condition that legal counsel
for the Company be satisfied that the sale and delivery will not violate the
Securities Act of 1933, as amended, or any other applicable laws, rules or
regulations.
12. Withholding of Taxes.
(a) In addition to the requirement in paragraph 7(c) that in order to
exercise an Option a person must make a payment to the Company or authorize
withholding in order to enable the Company to pay any withholding taxes due as a
result of the exercise, if a person who exercised an Incentive Stock Option
disposes of shares of Common Stock acquired through exercise of that Incentive
Stock Option either (i) within two years after the Date of Grant of the
Incentive Stock Option or (ii) within one year after the issuance of the shares
on exercise of the Incentive Stock Option, the person will notify the Company
promptly of the occurrence of the event and, if the event was a disposition of
Common Stock acquired on exercise of an Incentive Stock Option, the amount
realized upon the disposition.
(b) If, whether because of a disposition of Common Stock acquired on
exercise of an Incentive Stock Option, or otherwise, the Company is required to
pay withholding taxes to any Federal, state or other taxing authority and the
Employee fails to provide the Company with the funds with which to pay that
withholding tax, the Company may withhold up to 50% of each payment of salary or
bonus to the Employee (which will be in addition to any other required or
permitted withholding), until the Company has been reimbursed for the entire
withholding tax it was required to pay.
(c) The obligations contained in this paragraph 12 shall bind each
optionee, and each optionee, by accepting and/or exercising an Option, shall be
deemed to agree to observe and comply with them.
13. Reservation of Shares.
The Company will at all times keep reserved for issuance on exercise of Options
a number of authorized but unissued or reacquired shares of Common Stock equal
to the maximum number of shares the Company may be required to issue on exercise
of outstanding Options (assuming no subsequent adjustments under paragraph 9).
14. Amendment of the Plan.
The Board of Directors may at any time and from time to time modify or
amend this Plan in any respect effective at any date the Board of Directors
determines; provided, that without the approval of the stockholders of the
Company the Board of Directors may not, (i) except as provided in paragraph 9,
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increase the maximum number of shares of Common Stock which may be issued on
exercise of Options granted under this Plan; (ii) change the categories of
persons eligible to receive Options; (iii) increase the per-optionee limit
specified in paragraph 4(d); or (iv) modify the provisions of paragraphs 7(a)(i)
or 7(a)(ii). No modification or amendment of this Plan will, without the consent
of the holder of an outstanding Option, adversely affect the holder's rights
under that Option.
15. Interpretation
The Committee shall have the power to interpret the Plan and to make
and amend rules for putting it into effect and administering it. It is intended
that the Incentive Stock Options granted under the Plan shall constitute
incentive stock options within the meaning of section 422 of the Code, that the
Non-Qualified Options shall constitute property subject to federal income tax
pursuant to the provisions of section 83 of the Code and that the Plan shall
qualify for the exemption available under Rule 16b-3 (or any similar rule) of
the Securities and Exchange Commission. It is also intended that all
compensation income recognized by optionees as the result of the exercise of
Options or the disposition of Common Stock acquired on exercise of Options shall
be considered performance-based compensation excludable from such optionee's
"applicable employee remuneration" pursuant to section 162(m)(4)(C) of the Code.
The provisions of the Plan shall be interpreted and applied insofar as possible
to carry out such intent.
16. Termination of the Plan.
This Plan shall terminate on March 27, 2005 unless sooner terminated.
The Board of Directors may suspend or terminate this Plan at any time or from
time to time, but no such action may adversely affect the rights of a person
holding an outstanding Option.
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