CYTOGEN CORPORATION
AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN
(amended as of February 2005 and made effective for the
Offering Period beginning April 1, 2005)
The Cytogen Corporation Employee Stock Purchase Plan (the "Plan") is
intended to provide the eligible employees of Cytogen Corporation (the
"Company") and its qualifying corporate subsidiaries a convenient means of
purchasing shares of the Company's common stock, par value $ .01 per share (the
"Stock"). The Plan is intended to qualify as an "employee stock purchase plan"
under section 423 of the Internal Revenue Code of 1986, as amended (the "Code"),
and shall be administered, interpreted and construed in a manner consistent with
the requirements of that section of the Code.
ARTICLE I
DEFINITIONS
1.1 "Account" means the bookkeeping account established on behalf of each
Participant by the Administrator to record payroll deduction contributions made
by such Participant and shares of Stock purchased on his behalf.
1.2 "Administrator" means the individual or committee appointed pursuant
to Article VIII to administer the Plan.
1.3 "Board" means the Board of Directors of the Company.
1.4 "Business Day" means each day on which the Exchange (as defined in
Section 4.3) is open for business.
1.5 "Compensation" means a Participant's base wages, overtime pay,
commissions, cash bonuses, premium pay and shift differential, before giving
effect to any compensation reductions made in connection with plans described in
section 401(k), 125 or 132(f)(4) of the Code.
1.6 "Employee" means any person who is employed by the Company except an
employee whose customary employment is:
1.6.1 20 hours or less per week; or
1.6.2 5 months or less per year.
For the purpose of determining whether an individual is an Employee, the
definition of Company shall also include the Company's subsidiaries, if any, as
defined under Code section 424(f).
1.7 "Effective Date" means July 1, 1997, subject to the provisions of
Section 9.8 of the Plan.
1.8 "Entry Date" means January 1, April 1, July 1 and October 1 of each
Plan Year.
1.9 "Offering Commencement Date" means the first Business Day of each
Offering Period.
1.10 "Offering Period" means each three month period beginning on the first
day of each of January, April, July and October.
1.11 "Offering Termination Date" means the last Business Day of each
Offering Period.
1.12 "Participant" means an Employee who has met the eligibility
requirements of Article II and who has elected to participate pursuant to an
election under Section 3.1.
1.13 "Plan Year" means the 12-month period ending December 31.
1.14 "Shares" means shares of Stock that have been allocated to a
Participant's Account.
1.15 "Term of Service" means a consecutive one-month period during which an
individual was an Employee.
ARTICLE II
ELIGIBILITY
2.1 Eligibility. Except as provided in Section 3.6, an Employee who has
completed a Term of Service prior to the Effective Date and who continues to be
employed by the Company shall be eligible to participate in the Plan as of the
Effective Date. All other Employees, except as provided in Section 3.6, shall be
eligible to participate in the Plan as of the Entry Date coinciding with or next
following the completion of a Term of Service.
2.2 Eligibility Restrictions. A Participant who elects to terminate
participation in the Plan in accordance with Section 3.5 shall be prohibited
from participating in the Plan until the Entry Date next following the date of
such termination.
ARTICLE III
PARTICIPATION
3.1 Commencement of Participation. An eligible Employee may become a
Participant in the Plan on any Entry Date by completing an enrollment and
payroll deduction form and delivering it to the Company in accordance with
procedures established by the Administrator.
3.2 Payroll Deduction. At the time a Participant files his enrollment and
payroll deduction form, he shall elect to have after-tax deductions made from
his Compensation by a whole percentage that is not less than 1% nor more than
10% of his Compensation for the payroll period covered by the Offering Period.
3.3 Participants' Accounts. All payroll deductions made from a
Participant's Compensation shall be credited to his Account and used to purchase
shares of Stock in accordance with Article V. Contributions credited to a
Participant's Account shall not accrue interest or earnings during the period
prior to being used to purchase shares of Stock in accordance with Article V.
3.4 Changes in Payroll Deductions. The percentage designated by a
Participant as his rate of contribution under Section 3.2 shall automatically
apply to increases and decreases in his Compensation. Except as provided in
Section 3.5, a Participant may elect to change the rate of his contributions to
any other permissible rate effective as of the first day of the first payroll
period of any Offering Period provided the Participant files written notice with
the Administrator of an election to change his contribution rate at least ten
(10) Business Days before the effective date of the election.
3.5 Suspension and Resumption of Payroll Deductions. A Participant may
terminate contributions under the Plan as of the first day of any payroll period
by filing written notice thereof with the Administrator at least ten (10)
Business Days before the effective date of the termination. A Participant who
has terminated his participation in the Plan in accordance with the preceding
provisions: (i) may, upon written notice to the Company, elect to receive, in
cash, such amount that has accrued in the Participant's Account as of the
effective date of the termination; and (ii) may not resume making contributions
under the Plan until the Entry Date next following the date of the Participant's
election to resume participation in the Plan. A Participant whose contributions
have been terminated in accordance with the preceding provisions, may resume
contributions under the Plan in accordance with Section 2.2.
3.6 Restrictions on Participation. Notwithstanding any provisions of the
Plan to the contrary, no Employee shall be granted an option to participate in
the Plan under the following conditions:
3.6.1 No Employee shall be granted an option if, immediately after the
grant, such Employee would own stock, and/or hold outstanding
options to purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of stock of the
Company or any of the Company's subsidiaries (for purposes of
this paragraph, the rules of ss.424(d) of the Code shall apply in
determining stock ownership of any Employee); or
3.6.2 No Employee shall be granted an option which permits his rights
to purchase Stock under the Plan and all other employee stock
purchase plans (as described in section 423 of the Code) of the
Company to accrue at a rate which exceeds $25,000 of fair market
value of such Stock (determined at the time such option is
granted) for each calendar year in which such option is
outstanding at any time. For purposes of this Section 3.6.2:
3.6.2.1 the right to purchase stock under an option accrues when
the option (or any portion thereof) first becomes
exercisable during the calendar year;
3.6.2.2 the right to purchase stock under an option accrues at
the rate provided in
the option, but in no case may such rate exceed $25,000
of fair market value of such stock (determined at the
time such option is granted) for any one calendar year;
and
3.6.2.3 a right to purchase stock which has accrued under one
option granted pursuant a plan may not be carried over
to any other option.
ARTICLE IV
OFFERINGS
4.1 Quarterly Offerings. The Plan shall be implemented through quarterly
offerings of the Company's Stock. Each Offering Period shall begin on the
Offering Commencement Date and shall end on the Offering Termination Date.
4.2 Purchase Price. The "Purchase Price" per share of Stock with respect
to each Offering Period shall be the lesser of:
4.2.1 Eighty-five (85) percent of the official closing price of the
Stock on the Offering Termination Date on the National
Association of Securities Dealers Automated Quotations (or on
such other national securities exchange upon which the Stock may
then be listed, hereinafter referred to as the "Exchange") or if
no sale of Stock occurred on such date, the official closing
price on the preceding Business Day; or
4.2.2 Eighty-five (85) percent of the official closing price of the
Stock on the Offering Commencement Date on the Exchange (or if no
sale of Stock occurred on such date, the closing price on the
preceding business day).
4.3 Maximum Offering. The maximum number of shares of Stock which shall be
issued under the Plan, subject to adjustment upon changes in capitalization of
the Company as provided in Section 9.3, shall be 50,000 shares. If the total
number of shares which would be purchased during any Offering Period exceeds the
maximum number of available shares, the Administrator shall make a pro rata
allocation of the available shares in a manner that it determines to be
equitable and the balance of payroll deductions credited to the Accounts of
Participants shall be returned to such Participants as soon as administratively
practicable.
ARTICLE V
PURCHASE OF STOCK
5.1 Purchase of Shares. Subject to Section 3.6, on the Offering
Commencement Date of each Offering Period, the Company will grant to each
eligible employee who is then a Participant in the Plan an option to purchase on
the Offering Termination Date of such Offering Period, at the option price
hereinafter provided for, the largest number of whole shares of Stock of the
Company as does not exceed the number of shares determined by dividing $6,250 by
the Purchase Price (as defined in Section 4.2) on the Offering Commencement Date
of such Offering Period. Each employee who continues to be a Participant in the
Plan on the Offering Termination Date shall be deemed to have exercised his
option at the option price on such date and shall be deemed to have purchased
from the Company the number of full shares of Stock
reserved for the purpose of the Plan that his or her accumulated payroll
deductions on such date will pay for, but not in excess of the maximum number
determined in the manner set forth above. Any balance remaining in an employee's
Account at the end of a Offering Period will be automatically refunded to the
employee.
ARTICLE VI
ACCOUNTING
6.1 General. The Administrator shall establish procedures to account for
payroll deductions made by a Participant, the number of Shares of Stock
purchased on a Participant's behalf and the number of Shares allocated to a
Participant's Account.
6.2 Registration of Stock. Shares of Stock allocated to a Participant's
Account shall be registered in the name of the Company or its nominee for the
benefit of the Participant on whose behalf such shares were purchased.
6.3 Accounting for Distributions. Shares of Stock distributed or sold from
a Participant's Account shall be debited from his Account on a first-in
first-out basis.
6.4 Account Statements. Each Participant shall receive at least semi-
annual statements of all payroll deductions and shares of Stock allocated to his
Account together with all other transactions affecting his Account.
ARTICLE VII
WITHDRAWALS AND DISTRIBUTIONS
7.1 Withdrawal of Shares. A Participant may elect to withdraw any number
of Shares allocated to his Account by providing notification to the Company in
accordance with procedures established by the Administrator. As soon as
administratively practicable following notification of a Participant's election
to withdraw Shares, the Administrator shall cause a certificate representing the
number of Shares to be withdrawn to be delivered to the Participant.
7.2 Distribution Upon Termination. As soon as administratively
practicable after a Participant's termination of employment with the Company or
a participating subsidiary for any reason, a certificate representing all of
such Participant's Shares shall be distributed to him (or his executor, in the
event of his death).
7.3 Distribution of Payroll Deductions. In the event a Participant
terminates his employment with the Company or a participating subsidiary or his
participation in the Plan is terminated pursuant to Section 3.5, any payroll
deductions allocated to his Account and not yet applied to purchase Stock in
accordance with Section 5.1 shall be distributed to him in a cash lump sum as
soon as administratively practicable thereafter.
ARTICLE VIII
ADMINISTRATION
8.1 Appointment of Administrator. The Board shall appoint an individual or
committee comprised of so many members as the Board shall determine to
administer the Plan.
The Board may from time to time, if the plan is administered by a committee,
appoint members to the committee in substitution for or in addition to members
previously appointed and may fill vacancies, however caused, in the committee.
8.2 Authority of Administrator. The Administrator shall have the exclusive
power and authority to administer the Plan, including without limitation the
right and power to interpret the provisions of the Plan and make all
determinations deemed necessary or advisable for the administration of the Plan.
All such actions, interpretations and determinations which are done or made by
the Administrator in good faith shall be final, conclusive and binding on the
Company, the Participants and all other parties and shall not subject the
Administrator to any liability.
8.3 Administrator Procedures. The Administrator shall hold its meetings at
such times and places as it shall deem advisable and may hold telephone
meetings. In the event that the Administrator is a committee, a majority of its
members shall constitute a quorum and all determinations shall be made by a
majority of its members. Any decision or determination reduced to writing and
signed by the Administrator shall be as fully effective as if it had been made
by a majority vote at a meeting duly called and held. The Administrator may
appoint a secretary and shall make such rules and regulations for the conduct of
its business as it shall deem advisable.
8.4 Expenses. The Company will pay all expenses incident to the operation
of the Plan, including the costs of recordkeeping, accounting fees, legal fees
and the costs of delivery of stock certificates to Participants.
ARTICLE IX
MISCELLANEOUS
9.1 Transferability. Except as provided in Section 3.5 hereof, neither
payroll deductions credited to a Participant's Account nor any rights with
regard to the purchase of Stock under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way by the Participant other than by
will or the laws of descent and distribution.
9.2 Status as Owner. Each Participant shall be deemed to legally own all
shares of Stock allocated to his Account and shall be entitled to exercise all
rights associated with ownership of the shares, including, without limitation,
the right to vote such shares in all matters for which Stock is entitled to
vote, receive dividends, if any, and tender such shares in response to a tender
offer.
9.3 Adjustment Upon Changes in Capitalization. In the event of a
reorganization, recapitalization, stock split, spin-off, split-off, split-up,
stock dividend, combination of shares, merger, consolidation or any other change
in the corporate structure of the Company, or a sale by the Company of all or
part of its assets, the Board may make appropriate adjustments in the number and
kind of shares which are subject to purchase under the Plan and in the exercise
price applicable to outstanding options.
9.4 Amendment and Termination. The Board shall have complete power and
authority to terminate or amend the Plan (including without limitation the power
and authority to
make any amendment that may be deemed to affect the interests of any Participant
adversely); provided, however, that the Board shall not, without the approval of
the shareholders of the Company (i) increase the maximum number of shares which
may be offered under the Plan (except pursuant to Section 9.3); or (ii) in any
other way cause the Plan to fail the requirements of section 423 of the Code.
The Plan and all rights of Employees hereunder shall terminate: (i) at any time,
at the discretion of the Board, in which case any cash balance in Participants'
Accounts shall be refunded to such Participants as soon as administratively
possible; or (ii) on the Offering Termination Date on which Participants become
entitled to purchase a number of shares of Stock that exceeds the maximum number
of shares available under the Plan.
9.5 No Employment Rights. The Plan does not, directly or indirectly,
create in any Employee any right with respect to continuation of employment by
the Company and it shall not be deemed to interfere in any way with the
Company's right to terminate, or otherwise modify, an Employee's terms of
employment at any time.
9.6 Withholding. To the extent any payments or distributions under this
Plan are subject to Federal, state or local taxes, the Company is authorized to
withhold all applicable taxes. The Company may satisfy its withholding
obligation by (i) withholding shares of Stock allocated to a Participant's
Account, (ii) deducting cash from a Participant's Account, or (iii) deducting
cash from a Participant's other compensation. A Participant's election to
participate in the Plan authorizes the Company to take any of the actions
described in the preceding sentence.
9.7 Use of Funds. All payroll deductions held by the Company under this
Plan may be used by the Company for any corporate purpose and the Company shall
not be obligated to hold such payroll deductions in trust or otherwise segregate
such amounts.
9.8 Shareholder Approval. Notwithstanding the provision of Section 1.7 of
the Plan, the Plan shall not take effect until approved by the shareholders of
the Company.
9.9 Choice of Law. Except to the extent superseded by Federal law, the
laws of the State of New Jersey will govern all matters relating to the Plan.
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