As
filed with the Securities and Exchange Commission on August 17, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Biodel Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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90-0136863
(I.R.S. Employer
Identification No.)
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100 Saw Mill Road
Danbury, Connecticut
(Address of Principal Executive Offices)
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06810
(Zip Code)
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2010 Stock Incentive Plan
(Full Title of the Plan)
Errol B. De Souza
Chief Executive Officer
Biodel Inc.
100 Saw Mill Road
Danbury, Connecticut 02421
(203) 796-5000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Stuart R. Nayman
Wilmer Cutler Pickering Hale and Dorr LLP
399 Park Avenue
New York, New York 10022
Telephone: (212) 230-8800
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of
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Proposed
Maximum
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Proposed
Maximum
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Securities to be
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Amount to be
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Offering Price Per
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Aggregate
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Amount of
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Registered
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Registered(1)
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Share
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Offering Price
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Registration Fee
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Common Stock, $0.01
par value per share
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5,400,000 shares(2)
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$4.14 to $4.70(3)
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$21,483,600(3)
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$1,531.78
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(1)
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In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration
statement shall be deemed to cover any additional securities that may from time to time be
offered or issued to prevent dilution resulting from stock splits, stock dividends or similar
transactions.
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(2)
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Represents 5,400,000 shares of Common Stock initially available for future grants under the
2010 Stock Incentive Plan.
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(3)
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Estimated solely for the purpose of calculating the registration fee in accordance with Rule
457(h) of the Securities Act of 1933, as amended. The price per share and aggregate offering
price are calculated on the basis of (a) $4.18, the weighted average exercise price of the
865,000 shares subject to outstanding stock option grants under the 2010 Stock Incentive Plan,
at prices ranging from $4.14 to $4.70, and (b) the average of the high and low sale prices of
the Registrant’s Common Stock on the Nasdaq Global Market on August 12, 2010, in accordance
with Rule 457(c) under the Securities Act of 1933, as amended for the 4,535,000 shares
issuable under the 2010 Stock Incentive Plan which are not subject to outstanding options.
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TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is included in documents sent or given to participants in
the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act
of 1933, as amended (the “Securities Act”).
Item 2. Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is included in documents sent or given to
participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant is subject to the informational and reporting requirements of Sections 13(a),
14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in
accordance therewith files reports, proxy statements and other information with the Securities and
Exchange Commission (the “Commission”). The following documents, which are on file with the
Commission, are incorporated in this registration statement by reference:
(a) The registrant’s latest annual report filed pursuant to Section 13(a) or 15(d) of the
Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that
contains audited financial statements for the registrant’s latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the document referred to in (a) above.
(c) The description of the securities contained in the registrant’s registration statements on
Form 8-A filed under the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of 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 in this registration statement and to be
part hereof from the date of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for the 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 statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this registration
statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is incorporated under the laws of the State of Delaware. Section 145 of the
Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may indemnify
any persons who are, or are threatened to be made, parties 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 such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation, or is or was serving at the request of
such corporation as an officer, director, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with such action, suit
or proceeding, provided that such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation’s best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or her conduct was
illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a
party to any threatened, pending or completed action or suit by or in the right of the corporation
by reason of the fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may include expenses
(including attorneys’ fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit provided such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the corporation’s best interests
except that no indemnification is permitted without judicial approval if the officer or director is
adjudged to be liable to the corporation. Where an officer or director is successful on the merits
or otherwise in the defense of any action referred to above, the corporation must indemnify him or
her against the expenses which such officer or director has actually and reasonably incurred.
The Registrant’s second amended and restated certificate of incorporation and amended and
restated bylaws, provide for the indemnification of the Registrant’s directors and officers to the
fullest extent permitted under the DGCL. As permitted by Delaware law, the Registrant has entered
into indemnity agreements with each of its directors and executive officers. These agreements
generally require the Registrant to indemnify its directors and executive officers against any and
all expenses (including attorneys’ fees), witness fees, damages, judgments, fines, settlements and
other amounts incurred (including expenses of a derivative action) in connection with any action,
suit or proceeding, whether actual or threatened, to which any of these individuals may be made a
party by reason of the fact that he or she is or was a director, officer, employee, or other agent
of the Registrant or serving at its request as a director, officer, employee, or other agent of
another corporation or enterprise, provided that he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the Registrant’s best interests and, with
respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. Under the indemnification agreements, all expenses incurred by one of the Registrant’s
directors or executive officers in defending any such action, suit or proceeding in advance of its
final disposition shall be paid by the Registrant upon delivery to it of an undertaking, by or on
behalf of the director or executive officer, to repay all advanced amounts if it is ultimately
determined that the director or executive officer is not entitled to be indemnified by the
Registrant under his or her indemnification agreement, the Registrant’s amended and restated bylaws
or the DGCL. The indemnification agreements also set forth certain procedures that will apply in
the event any of the Registrant’s directors or executive officers brings a claim for
indemnification under his or her indemnification agreement.
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Section 102 of the Delaware General Corporation Law permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary duties as a
director, except for liability:
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for any transaction from which the director derives an improper personal benefit;
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for acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law;
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for acts related to unlawful stock repurchases, redemptions or other distributions
or payment of dividends; or
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for any breach of a director’s duty of loyalty to the corporation or its
stockholders.
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The Registrant’s second amended and restated certificate of incorporation and amended and
restated bylaws include such a provision.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9. Undertakings.
1.
Item
512(a)
of Regulation S-K
. 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 the 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 the registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement;
provided, however,
that paragraphs (i) and (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 Section
15(d) of the Exchange Act that are incorporated by reference in the 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.
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(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.
2.
Item
512(b)
of Regulation S-K
. 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 Section 15(d) of the Exchange Act that is incorporated
by reference in the 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.
3.
Item
512(h)
of Regulation S-K
. 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 foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Danbury, State of
Connecticut, on this 17 day of August,
2010.
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BIODEL INC.
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By:
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/s/ ERROL B. DE SOUZA
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Dr. Errol B. De Souza
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Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Biodel Inc., hereby severally constitute and
appoint Errol B. De Souza, Gerard Michel and Paul S. Bavier, and each of them singly, our true and
lawful attorneys with full power to them, and each of them singly, to sign for us and in our names
in the capacities indicated below, the registration statement on Form S-8 filed herewith and any
and all subsequent amendments to said registration statement, and generally to do all such things
in our names and on our behalf in our capacities as officers and directors to enable Biodel Inc. to
comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said registration statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ ERROL B. DE SOUZA
Errol B. De Souza
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Chief Executive
Officer,
Director
(Principal executive
officer)
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August 17, 2010
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/s/ GERARD MICHEL
Gerard Michel
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Chief Financial Officer
and
Treasurer
(Principal financial
and accounting officer)
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August 17, 2010
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/s/ BARRY H. GINSBERG
Barry H. Ginsberg
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Director
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August 17, 2010
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/s/
IRA W. LIEBERMAN
Ira W. Lieberman
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Director
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August 17, 2010
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Signature
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Title
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Date
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/s/ DANIEL LORBER
Daniel Lorber
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Director
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August 17, 2010
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/s/ BRIAN J.G. PEREIRA
Brian J.G. Pereira
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Director
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August 17, 2010
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/s/ SOLOMON S. STEINER
Solomon S. Steiner
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Director
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August 17, 2010
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INDEX TO EXHIBITS
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Number
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Description
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4.1(1)
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Registrant’s Second Amended and Restated Certificate of
Incorporation (Incorporated by reference to Exhibit 3.4 to the
registrant’s Registration Statement on Form S-1 (SEC File No.
333-140504))
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4.2(1)
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Registrant’s Amended and Restated Bylaws (Incorporated by
reference to Exhibit 3.6 to the registrant’s Registration
Statement on Form S-1 (SEC File No. 333-140504))
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5
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to
the Registrant
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23.1
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP
(included in Exhibit 5)
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23.2
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Consent of BDO USA, LLP
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24
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Power of attorney (included on the signature pages of this
registration statement)
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99.1(1)
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2010 Stock Incentive Plan (Incorporated by reference to Exhibit
10.1 to the registrant’s Quarterly Report on Form 10-Q filed on
May 7, 2010 (SEC File No. 001-33451))
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EXHIBIT 5
+1 212 230 8800 (t)
+1 212 230 8888 (f)
wilmerhale.com
August 17, 2010
Biodel Inc.
100 Saw Mill Road
Danbury, Connecticut 06810
Re: 2010 Stock Incentive Plan
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration
Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended (the “Securities Act”), relating to an aggregate of 5,400,000
shares of common stock, $0.01 par value per share (the “Shares”), of Biodel Inc., a Delaware
corporation (the “Company”), issuable under the Company’s 2010 Stock Incentive Plan (the “Plan”).
We have examined the Certificate of Incorporation and Bylaws of the Company, each as amended and
restated to date, and originals, or copies certified to our satisfaction, of all pertinent records
of the meetings of the directors and stockholders of the Company, the Registration Statement and
such other documents relating to the Company as we have deemed material for the purposes of this
opinion.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, photostatic or other copies, the
authenticity of the originals of any such documents and the legal competence of all signatories to
such documents.
We assume that the appropriate action will be taken, prior to the offer and sale of the Shares in
accordance with the Plan, to register and qualify the Shares for sale under all applicable state
securities or “blue sky” laws.
We express no opinion herein as to the laws of any state or jurisdiction other than the state laws
of the State of New York, the General Corporation Law of the State of Delaware and the federal laws
of the United States of America.
It is understood that this opinion is to be used only in connection with the offer and sale of the
Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion
should be inferred as to any other matters.
Wilmer Cutler Pickering Hale and Dorr
llp
, 399 Park Avenue, New York, New York 10022
Beijing Berlin Boston Brussels Frankfurt London Los Angeles New York Oxford Palo Alto Waltham Washington
Biodel Inc.
August 17, 2010
Page 2
Based on the foregoing, we are of the opinion that the Shares have been duly authorized for
issuance and, when the Shares are issued and paid for in accordance with the terms and conditions
of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission in connection with the
Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K
under the Securities Act. In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities Act or the rules
and regulations of the Commission.
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Very truly yours,
WILMER CUTLER PICKERING HALE AND DORR
llp
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By:
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/s/ STUART R. NAYMAN
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Stuart R. Nayman, a Partner
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Wilmer Cutler Pickering Hale and Dorr
llp
, 399 Park Avenue, New York, New York 10022
Beijing Berlin Boston Brussels Frankfurt London Los Angeles New York Oxford Palo Alto Waltham Washington
