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Form S-8 PROGENICS PHARMACEUTICAL

June 28, 2018 4:08 PM

As filed with the Securities and Exchange Commission on June 28, 2018

Registration No. 333-_____________



 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

___________________

 

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

___________________

 

PROGENICS PHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)

___________________

 

Delaware 13-3379479
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)

 

One World Trade Center, 47th Floor

New York, New York 10007
(Address, including zip code, of Principal Executive Offices)

___________________

 

Progenics Pharmaceuticals, Inc.

2018 Performance Incentive Plan

(Full title of the plan)

___________________

 

Mark R. Baker

Chief Executive Officer

Progenics Pharmaceuticals, Inc.

One World Trade Center, 47th Floor

New York, New York 10007

(646) 975-2500

(Name, address and telephone number, including area code, of agent for service)

 

COPY TO:

 

Tobias L. Knapp, Esq.
O’Melveny & Myers LLP

7 Times Square

New York, New York 10036

___________________

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer ☐ Accelerated filer ☑
   
Non-accelerated filer ☐ (Do not check if a smaller reporting company)  Smaller reporting company ☐
   
  Emerging growth company ☐

                                        

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of

Securities

To Be Registered

 

 

Amount

To Be

Registered

   

Proposed

Maximum

Offering

Price

Per Share

   

Proposed

Maximum

Aggregate

Offering

Price

   

 

 

Amount Of

Registration

Fee

 

Common Stock, $0.0013 par value per share

4,800,000 shares

(1)    $ 8.41 (2)    $ 40,344,000 (2)    $ 5,022.83 (2) 

 

(1)

This Registration Statement covers, in addition to the number of shares of Progenics Pharmaceuticals, Inc., a Delaware corporation (the “Company” or the “Registrant”), common stock, par value $0.0013 per share (the “Common Stock”), stated above, options and other rights to purchase or acquire the shares of Common Stock covered by this Registration Statement and, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), an additional indeterminate number of shares, options and rights that may be offered or issued pursuant to the Progenics Pharmaceuticals, Inc. 2018 Performance Incentive Plan (the “Plan”) as a result of one or more adjustments under the Plan to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions.

 

(2)

Pursuant to Securities Act Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Common Stock on June 22, 2018, as quoted on the Nasdaq Global Select Market.

 

 

The Exhibit Index for this Registration Statement is at page 7.



 

 

 

 

PART I

 

INFORMATION REQUIRED IN THE

SECTION 10(a) PROSPECTUS

 

 

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Securities Act Rule 428(b)(1).

 

2

 

 

PART II

 

INFORMATION REQUIRED IN THE

REGISTRATION STATEMENT

 

 

Item 3.

Incorporation of Certain Documents by Reference

 

The following documents of the Company filed with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:

 

 

(a)

The Company’s Annual Report on Form 10-K for its fiscal year ended December 31, 2017, filed with the Commission on March 8, 2018 (Commission File No. 000-23143);

 

 

(b)

The Company’s Quarterly Report on Form 10-Q for its fiscal quarter ended March 31, 2018, filed with the Commission on May 9, 2018 (Commission File No. 000-23143);

 

 

(c)

The Company’s Current Reports on Form 8-K, filed with the Commission on March 22, 2018, May 11, 2018, May 31, 2018, and June 14, 2018 (each, Commission File No. 000-23143); and

 

 

(d)

The description of the Company’s Common Stock contained in its Registration Statement on Form 8-A filed with the Commission on September 29, 1997 (Commission File No. 000-23143), and any other amendment or report filed for the purpose of updating such description.

 

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement.

 

Item 4.

Description of Securities

 

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel

 

Not applicable.

 

3

 

 

Item 6.

Indemnification of Directors and Officers

 

Section 145(a) of the Delaware General Corporation Law (“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 or she 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 or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she 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 reasonable cause to believe his or her conduct was unlawful.

 

 Section 145(b) 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 or her in connection with the defense or settlement of such action or suit if he or she 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 further provides that (i) 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 or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith; (ii) indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and (iii) the corporation may purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such whether or not the corporation would have the power to indemnify him or her against such liabilities under 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. No such provision, however, may eliminate or limit the liability of a director for breaching his or her 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 Registrant’s Amended and Restated Certificate of Incorporation contains such a provision.

 

The Registrant’s Amended and Restated Certificate of Incorporation and By-Laws provide that the Registrant shall indemnify officers, directors, employees and agents of the Registrant, 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 Registrant to purchase and maintain insurance against any liability asserted against any director, officer, employee or agent of the Registrant arising out of his or her capacity as such.

 

4

 

 

The Registrant has entered into Indemnification Agreements with each of its officers and directors, pursuant to which the Registrant has agreed to indemnify and advance expenses to such officers and directors to the fullest extent permitted by applicable law.

 

The Registrant has obtained an insurance policy providing coverage for certain liabilities of its officers and directors. 

 

Item 7.

Exemption from Registration Claimed

 

Not applicable.

 

Item 8.

Exhibits

 

See the attached Exhibit Index at page 7, which is incorporated herein by reference.

 

Item 9.

Undertakings

 

(a)         The undersigned Registrant hereby undertakes:

 

(1)         To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)       To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)      To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;

 

(iii)     To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2)         That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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.

 

(3)         To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

5

 

 

(b)     The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement 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.

 

(h)     Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

 

EXHIBIT INDEX

 

Exhibit

Number

Description of Exhibit
   
   
4.  Progenics Pharmaceuticals, Inc. 2018 Performance Incentive Plan. (Filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Commission on June 14, 2018 (Commission File No. 000-23143) and incorporated herein by this reference.)
   
5. Opinion of O’Melveny & Myers LLP (opinion re legality).
   

23.1

Consent of Ernst & Young LLP.

 

23.2

Consent of Counsel (included in Exhibit 5).

 

24.

Power of Attorney (included in this Registration Statement under “Signatures”).

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on June 28, 2018.

 

 

PROGENICS PHARMACEUTICALS, INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Mark R. Baker

 

 

 

Mark R. Baker

 

 

 

Chief Executive Officer

 

 

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Mark R. Baker and Patrick Fabbio, and each of them, acting individually and without the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them individually, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature

Title

Date

     

/s/ Mark. R. Baker

Mark R. Baker

Chief Executive Officer and Director

(Principal Executive Officer)

June 28, 2018

     

/s/ Patrick Fabbio 

Patrick Fabbio

Senior Vice President and Chief Financial Officer

(Principal Financial and Accounting Officer)

June 28, 2018

     

/s/ Peter J. Crowley

Peter J. Crowley

Chairman

June 28, 2018

     

/s/ Bradley Campbell

Bradley Campbell

Director

June 28, 2018

 

 

 

 

Signature Title Date
     

/s/ Karen J. Ferrante, M.D.

Karen J. Ferrante, M.D.

Director

June 28, 2018

     

/s/ Michael D. Kishbauch

Michael D. Kishbauch

Director

June 28, 2018

     

/s/ David A. Scheinberg, M.D., Ph.D.

David A. Scheinberg, M.D., Ph.D.

Director

June 28, 2018

     

/s/ Nicole S. Williams

Nicole S. Williams

Director

June 28, 2018

 

 

EXHIBIT 5

 

June 28, 2018

 

Progenics Pharmaceuticals, Inc.

One World Trade Center, 47th Floor

New York, New York 10007

 

Re:     Registration of Securities of Progenics Pharmaceuticals, Inc.

 

Ladies and Gentlemen:

 

In connection with the registration of up to 4,800,000 shares of Common Stock of Progenics Pharmaceuticals, Inc., a Delaware corporation (the “Company”), par value $0.0013 per share (the “Shares”), under the Securities Act of 1933, as amended, pursuant to a Registration Statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission on or about the date hereof, such Shares to be issued or delivered pursuant to the Progenics Pharmaceuticals, Inc. 2018 Performance Incentive Plan (the “Plan”), you have requested our opinion set forth below.

 

In our capacity as counsel, we have examined originals or copies of those corporate and other records of the Company we considered appropriate.

 

On the basis of such examination and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this opinion, we are of the opinion that the Shares have been duly authorized by all necessary corporate action on the part of the Company and, when issued in accordance with such authorization, the provisions of the Plan and relevant agreements duly authorized by and in accordance with the terms of the Plan, and upon payment for and delivery of the Shares as contemplated in accordance with the Plan, and either (a) the countersigning of the certificate or certificates representing the Shares by a duly authorized signatory of the registrar for the Company’s Common Stock, or (b) the book-entry of the Shares by the transfer agent for the Company’s Common Stock in the name of The Depository Trust Company or its nominee, the Shares will be validly issued, fully paid and non-assessable.

 

We consent to your filing this opinion as an exhibit to the Registration Statement.

 

 

Respectfully submitted,

 

/s/ O’Melveny & Myers LLP

O’Melveny & Myers LLP

 

 

EXHIBIT 23.1

 

Consent of Independent Registered Public Accounting Firm

 

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Progenics Pharmaceuticals, Inc. 2018 Performance Incentive Plan of our reports dated March 8, 2018, with respect to the consolidated financial statements and schedule of Progenics Pharmaceuticals, Inc. and the effectiveness of internal control over financial reporting of Progenics Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.

 

 

 

/s/ Ernst & Young LLP

 

Stamford, Connecticut

June 28, 2018

 

 

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