EXHIBIT 10.1
CYTOGEN CORPORATION
2004 STOCK INCENTIVE PLAN
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1. Purpose
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The purpose of this 2004 Stock Incentive Plan (the "Plan") of Cytogen
Corporation, a Delaware corporation (the "Company"), is to advance the interests
of the Company's stockholders by enhancing the Company's ability to attract,
retain and motivate persons who make (or are expected to make) important
contributions to the Company by providing such persons with equity ownership
opportunities and performance-based incentives and thereby better aligning the
interests of such persons with those of the Company's stockholders. Except where
the context otherwise requires, the term "Company" shall include any of the
Company's present or future parent or subsidiary corporations as defined in
Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the "Code") and any other business venture
(including, without limitation, joint venture or limited liability company) in
which the Company has a controlling interest, as determined by the Board of
Directors of the Company (the "Board").
2. Eligibility
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All of the Company's employees, officers, consultants and advisors are
eligible to be granted options and restricted stock awards (each, an "Award")
under the Plan. Each person who has been granted an Award under the Plan shall
be deemed a "Participant."
3. Administration and Delegation
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(a) Administration by Board of Directors. The Plan will be administered by
the Board. The Board shall have authority to grant Awards and to adopt, amend
and repeal such administrative rules, guidelines and practices relating to the
Plan as it shall deem advisable. The Board may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in the manner
and to the extent it shall deem expedient to carry the Plan into effect and it
shall be the sole and final judge of such expediency. All decisions by the Board
shall be made in the Board's sole discretion and shall be final and binding on
all persons having or claiming any interest in the Plan or in any Award. No
director or person acting pursuant to the authority delegated by the Board shall
be liable for any action or determination relating to or under the Plan made in
good faith.
(b) Appointment of Committees. To the extent permitted by applicable law,
the Board may delegate any or all of its powers under the Plan to one or more
committees or subcommittees of the Board (a "Committee"). All references in the
Plan to the "Board" shall mean the Board or a Committee of the Board or the
executive officers referred to in Section 3(c) to the extent that the Board's
powers or authority under the Plan have been delegated to such Committee or
executive officers.
(c) Delegation to Executive Officers. To the extent permitted by applicable
law, the Board may delegate to one or more executive officers of the Company,
the power to grant Awards to non-officer employees of the Company or any of its
present or future subsidiary corporations and to exercise such other powers
under the Plan as the Board may determine, provided that the Board shall fix the
terms of the Awards to be granted by such executive officers (including the
exercise price of such Awards, which may include a formula by which the exercise
price will be determined) and the maximum number of shares subject to Awards
that the executive officers may grant; provided further, however, that no
executive officer shall be authorized to grant Awards to any "executive officer"
of the Company (as defined in Rule 3b-7 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) or to any "officer" of the Company (as
defined by Rule 16a-1 under the Exchange Act).
4. Stock Available for Awards
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(a) Subject to adjustment under Section 7, Awards may be made under the
Plan for up to one million two hundred thousand (1,200,000) shares of common
stock, $0.01 par value per share, of the Company (the "Common Stock"). No more
than 200,000 shares of Common Stock (subject to adjustment under Section 7) may
be issued pursuant to all Awards other than Options (as hereinafter defined). If
any Award expires or is terminated, surrendered or canceled without having been
fully exercised or is forfeited in whole or in part (including as the result of
shares of Common Stock subject to such Award being repurchased by the Company at
the original issuance price pursuant to a contractual repurchase right) or
results in any Common Stock not being issued, the unused Common Stock covered by
such Award shall again be available for the grant of Awards under the Plan,
subject, however, in the case of Incentive Stock Options (as hereinafter
defined), to any limitations under the Code. Shares issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury
shares.
(b) Per-Participant Limit. Subject to adjustment under Section 7, the
maximum number of shares of Common Stock with respect to which Awards may be
granted to any Participant under the Plan shall be 50,000 per calendar year. The
per-Participant limit described in this Section 4(b) shall be construed and
applied consistently with Section 162(m) of the Code or any successor provision
thereto, and the regulations thereunder ("Section 162(m)").
5. Stock Options
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(a) General. The Board may grant options to purchase Common Stock (each, an
"Option") and determine the number of shares of Common Stock to be covered by
each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
(b) Incentive Stock Options. An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code (an "Incentive
Stock Option") shall only be granted to employees of the Company, any of its
present or future parent or subsidiary corporations as defined in Sections
424(e) or (f) of the Code, and any other entities the employees of which are
eligible to receive Incentive Stock Options under the Code, and shall be subject
to and shall be construed consistently with the requirements of Section 422 of
the Code. The Company shall have no liability to a Participant, or any other
party, if an Option (or any part thereof) that is intended to be an Incentive
Stock Option is not an Incentive Stock Option.
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(c) Exercise Price.
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(1) The exercise price shall be the Fair Market Value (as hereafter
defined) of the Common Stock, as determined by the Board at the time the
Option is granted, unless a higher exercise price is specified by the Board
at the time of grant.
(2) All Option grants shall be made in accordance with the provisions
of the Company's Bylaws.
(3) Fair Market value shall mean: (i) if the Common Stock is traded in
a market in which actual transactions are reported, the average 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 Board.
(d) Duration of Options. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in the applicable
option agreement; provided, however, that no Option will be granted for a term
in excess of 10 years.
(e) Exercise of Option. Options may be exercised by delivery to the Company
of a written notice of exercise signed by the proper person or by any other form
of notice (including electronic notice) approved by the Board together with
payment in full as specified in Section 5(f) for the number of shares for which
the Option is exercised.
(f) Payment Upon Exercise. Common Stock purchased upon the exercise of an
Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may, in its sole discretion, otherwise provide
in an option agreement, by (i) delivery of an irrevocable and unconditional
undertaking by a creditworthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price and any required tax withholding
or (ii) delivery by the Participant to the Company of a copy of irrevocable
and unconditional instructions to a creditworthy broker to deliver promptly
to the Company cash or a check sufficient to pay the exercise price and any
required tax withholding;
(3) when the Common Stock is registered under the Securities Exchange
Act of 1934 (the "Exchange Act"), by delivery of shares of Common Stock
owned by the Participant valued at their Fair Market Value, provided (i)
such method of payment is then permitted under applicable law and (ii) such
Common Stock, if acquired directly from the Company was owned by the
Participant at least six months prior to such delivery;
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(4) to the extent permitted by applicable law and by the Board, in its
sole discretion by (i) delivery of a promissory note of the Participant to
the Company on terms determined by the Board, or (ii) payment of such other
lawful consideration as the Board may determine; or
(5) by any combination of the above permitted forms of payment.
(g) Substitute Options. In connection with a merger or consolidation of an
entity with the Company or the acquisition by the Company of property or stock
of an entity, the Board may grant Options in substitution for any options or
other stock or stock-based Options granted by such entity or an affiliate
thereof. Substitute Options may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations on Options
contained in the other sections of this Section 5 or in Section 2.
(h) 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
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.
6. Restricted Stock
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(a) Grants. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to the right of the Company to repurchase all or
part of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in
the event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a "Restricted Stock Award").
(b) Terms and Conditions. The Board shall determine the terms and
conditions of a Restricted Stock Award, including the conditions for repurchase
(or forfeiture) and the issue price, if any.
(c) Stock Certificates. Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and,
unless otherwise determined by the Board, deposited by the Participant, together
with a stock power endorsed in blank, with the Company (or its designee). At the
expiration of the applicable restriction periods, the Company (or such designee)
shall deliver the certificates no longer subject to such restrictions to the
Participant or if the Participant has died, to the beneficiary designated, in a
manner determined by the Board, by a Participant to receive amounts due or
exercise rights of the Participant in the event of the Participant's death (the
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"Designated Beneficiary"). In the absence of an effective designation by a
Participant, "Designated Beneficiary" shall mean the Participant's estate.
(d) Deferred Delivery of Shares. The Board may, at the time any Restricted
Stock Award is granted, provide that, at the time Common Stock would otherwise
be delivered pursuant to the Award, the Participant shall instead receive an
instrument evidencing the right to future delivery of Common Stock at such time
or times, and on such conditions, as the Board shall specify. The Board may at
any time accelerate the time at which delivery of all or any part of the Common
Stock shall take place.
7. Adjustments for Changes in Common Stock and Certain Other Events
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(a) Changes in Capitalization. In the event of any stock split, reverse
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than an ordinary
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the per-Participant limit set forth in Section 4(b), (iii) the number and
class of securities and exercise price per share subject to each outstanding
Option, and (iv) the repurchase price per share subject to each outstanding
Restricted Stock Award shall be appropriately adjusted by the Company (or
substituted Awards may be made, if applicable). If this Section 7(a) applies and
Section 7(c) also applies to any event, Section 7(c) shall be applicable to such
event, and this Section 7(a) shall not be applicable.
(b) Liquidation or Dissolution. In the event of a proposed liquidation or
dissolution of the Company, the Board shall upon written notice to the
Participants provide that all then unexercised Options will (i) become
exercisable in full as of a specified time at least 10 business days prior to
the effective date of such liquidation or dissolution and (ii) terminate
effective upon such liquidation or dissolution, except to the extent exercised
before such effective date.
(c) Reorganization Events.
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(1) Definition. A "Reorganization Event" shall mean (a) any merger or
consolidation of the Company with or into another entity as a result of
which all of the Common Stock of the Company is converted into or exchanged
for the right to receive cash, securities or other property or (b) any
exchange of all of the Common Stock of the Company for cash, securities or
other property pursuant to a share exchange transaction.
(2) Consequences of a Reorganization Event on Options. Upon the
occurrence of a Reorganization Event, or the execution by the Company of
any agreement with respect to a Reorganization Event, the Board shall
provide that all outstanding Options shall be assumed, or equivalent
options shall be substituted, by the acquiring or succeeding corporation
(or an affiliate thereof). For purposes hereof, an Option shall be
considered to be assumed if, following consummation of the Reorganization
Event, the Option confers the right to purchase, for each share of Common
Stock subject to the Option immediately prior to the consummation of the
Reorganization Event, the consideration (whether cash, securities or other
property) received as a result of the Reorganization Event by holders of
Common Stock for each share of Common Stock held immediately prior to the
consummation of the Reorganization Event (and if holders were offered a
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choice of consideration, the type of consideration chosen by the holders of
a majority of the outstanding shares of Common Stock); provided, however,
that if the consideration received as a result of the Reorganization Event
is not solely common stock of the acquiring or succeeding corporation (or
an affiliate thereof), the Company may, with the consent of the acquiring
or succeeding corporation, provide for the consideration to be received
upon the exercise of Options to consist solely of common stock of the
acquiring or succeeding corporation (or an affiliate thereof) equivalent in
fair market value to the per share consideration received by holders of
outstanding shares of Common Stock as a result of the Reorganization Event.
Notwithstanding the foregoing, if the acquiring or succeeding
corporation (or an affiliate thereof) does not agree to assume, or
substitute for, such Options, then the Board shall, upon written notice to
the Participants, provide that all then unexercised Options will become
exercisable in full as of a specified time prior to the Reorganization
Event and will terminate immediately prior to the consummation of such
Reorganization Event, except to the extent exercised by the Participants
before the consummation of such Reorganization Event; provided, however, in
the event of a Reorganization Event under the terms of which holders of
Common Stock will receive upon consummation thereof a cash payment for each
share of Common Stock surrendered pursuant to such Reorganization Event
(the "Acquisition Price"), then the Board may instead provide that all
outstanding Options shall terminate upon consummation of such
Reorganization Event and that each Participant shall receive, in exchange
therefor, a cash payment equal to the amount (if any) by which (A) the
Acquisition Price multiplied by the number of shares of Common Stock
subject to such outstanding Options (whether or not then exercisable),
exceeds (B) the aggregate exercise price of such Options.
(3) Consequences of a Reorganization Event on Restricted Stock Awards.
Upon the occurrence of a Reorganization Event, the repurchase and other
rights of the Company under each outstanding Restricted Stock Award shall
inure to the benefit of the Company's successor and shall apply to the
cash, securities or other property which the Common Stock was converted
into or exchanged for pursuant to such Reorganization Event in the same
manner and to the same extent as they applied to the Common Stock subject
to such Restricted Stock Award.
8. General Provisions Applicable to Awards
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(a) Transferability of Awards. Except as the Board may otherwise determine
or provide in an Award, Awards shall not be sold, assigned, transferred, pledged
or otherwise encumbered by the person to whom they are granted, either
voluntarily or by operation of law, except by will or the laws of descent and
distribution, and, during the life of the Participant, shall be exercisable only
by the Participant. References to a Participant, to the extent relevant in the
context, shall include references to authorized transferees.
(b) Documentation. Each Award shall be evidenced in such form (written,
electronic or otherwise) as the Board shall determine. Each Award may contain
terms and conditions in addition to those set forth in the Plan.
(c) Board Discretion. Except as otherwise provided by the Plan, each Award
may be made alone or in addition or in relation to any other Award. The terms of
each Award need not be identical, and the Board need not treat Participants
uniformly.
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(d) Termination of Service of Holder of Award Other Than Because of
Disability or Death. If there is a termination of service of a person to whom an
Award has been granted, other than by reason of the person's death or
disability, each Award 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 Award, or (iii) such earlier time as may
be determined at the time of granting the Award.
(e) Total Disability of Holder of Award. If there is a termination of
service of a person to whom an Award has been granted by reason of his or her
disability, each Award 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 Award, or (iii) such earlier time as may be determined at
the time of granting the Award.
(f) Death of Holder of Award. If there is a termination of service of a
person to whom an Award has been granted by reason of his or her death, or a
Participant dies following the date of his or her termination of service but at
a time when an Award still would be exercisable by that person but for the death
of the person, each Award held by the person at the time of his or her death may
be exercised by the person or persons to whom the Award 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 at the time of granting the Award), or
(ii) the expiration of the term specified in the Award. In the event of a
Participant's death, all of such person's outstanding Options will transfer to
the maximum extent permitted by law to such person's designated beneficiary.
Each Participant may name, from time to time, any beneficiary or beneficiaries
(which may be named contingently or successively) as his or her beneficiary for
purposes of this Plan. Each designation shall be on a form prescribed by the
Company, will be effective only when delivered to the Company, when effective
will revoke all prior designations by the Participant and will be allowed only
to the extent permitted by applicable law. If a Participant dies with no such
beneficiary designation in effect, such person's Options will be transferable by
will or pursuant to the laws of descent and distribution applicable to such
person.
(g) Withholding. Each Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in connection with Awards to such Participant no later than the date
of the event creating the tax liability. Except as the Board may otherwise
provide in an Award, when the Common Stock is registered under the Exchange Act,
Participants may satisfy such tax obligations in whole or in part by delivery of
shares of Common Stock, including shares retained from the Award creating the
tax obligation, valued at their Fair Market Value; provided, however, that the
total tax withholding where stock is being used to satisfy such tax obligations
cannot exceed the Company's minimum statutory withholding obligations (based on
minimum statutory withholding rates for federal and state tax purposes,
including payroll taxes, that are applicable to such supplemental taxable
income). The Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to a Participant.
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(h) Amendment of Award. Subject to the provisions of the Company's Bylaws,
the Board may amend, modify or terminate any outstanding Award, including but
not limited to, substituting therefor another Award of the same or a different
type, or converting an Incentive Stock Option to a Nonstatutory Stock Option,
provided that the Participant's consent to such action shall be required unless
the Board determines that the action, taking into account any related action,
would not materially and adversely affect the Participant.
(i) Conditions on Delivery of Stock. The Company will not be obligated to
deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(j) Acceleration. The Board may at any time provide that any Award shall
become immediately exercisable in full or in part, free of some or all
restrictions or conditions, or otherwise realizable in full or in part, as the
case may be.
(k) Deferred Delivery of Shares Issuable Pursuant to an Award. The Board
may, at the time any Award is granted, provide that, at the time Common Stock
would otherwise be delivered pursuant to the Award, the Participant shall
instead receive an instrument evidencing the right to future delivery of Common
Stock at such time or times, and on such conditions, as the Board shall specify.
The Board may at any time accelerate the time at which delivery of all or any
part of the Common Stock shall take place.
9. Miscellaneous
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(a) No Right To Employment or Other Status. No person shall have any claim
or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the applicable
Award, no Participant or designated beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed with
respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then an optionee who exercises an Option between the record date and
the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common
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Stock acquired upon such Option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
(c) Effective Date and Term of Plan. The Plan shall become effective on the
date on which it is adopted by the Board, but no Award granted to a Participant
that is intended to comply with Section 162(m) shall become exercisable, vested
or realizable, as applicable to such Award, unless and until the Plan has been
approved by the Company's stockholders to the extent stockholder approval is
required by Section 162(m) in the manner required under Section 162(m)
(including the vote required under Section 162(m)). No Awards shall be granted
under the Plan after the completion of ten years from the earlier of (i) the
date on which the Plan was adopted by the Board or (ii) the date the Plan was
approved by the Company's stockholders, but Awards previously granted may extend
beyond that date.
(d) Amendment of Plan. Subject to the provisions of the Company's Bylaws,
the Board may amend, suspend or terminate the Plan or any portion thereof at any
time, provided that to the extent required by Section 162(m), no Award granted
to a Participant that is intended to comply with Section 162(m) after the date
of such amendment shall become exercisable, realizable or vested, as applicable
to such Award, unless and until such amendment shall have been approved by the
Company's stockholders if required by Section 162(m) (including the vote
required under Section 162(m)).
(e) Reservation of Shares. The Company will at all times keep reserved for
issuance on exercise of Awards 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 Awards (assuming no subsequent
adjustments under Section 7).
(f) Governing Law. The provisions of the Plan and all Awards made hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware, without regard to any applicable conflicts of law.
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