[X]
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No fee required. |
[ ]
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
(1)
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Title of each class of securities to which transaction applies: |
(2)
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Aggregate number of securities to which transaction applies: |
(3)
|
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
(4)
|
Proposed maximum aggregate value of transaction: |
(5)
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Total fee paid: |
[ ]
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Fee paid previously with preliminary materials: |
[ ]
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1)
|
Amount previously paid: |
(2)
|
Form, Schedule or Registration Statement No.: |
(3)
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Filing Party: |
(4)
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Date Filed: |
1.
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To elect three Class II directors for a term of three years; |
2.
|
To approve an amendment to our 2010 Stock Incentive Plan to increase the number of shares of common stock authorized for issuance thereunder solely for the purpose of allowing us to issue an aggregate of 1,096,756 restricted stock units to certain of our named executive officers and other employees in place of an aggregate of $822,567 in discretionary cash bonuses in connection with the fiscal year ended September 30, 2011; |
3.
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To approve an amendment to our Second Amended and Restated Certificate of Incorporation, as amended, which we refer to as our Certificate of Incorporation, to effect a one-for-two reverse stock split of our issued and outstanding shares of common stock and to fix on a post-split basis the number of authorized shares of common stock at 50,000,000 shares, such amendment to be effected prior to our next annual meeting of stockholders in the sole discretion of our board of directors without further approval or authorization of our stockholders; |
4.
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To approve an amendment to our Certificate of Incorporation to effect a one-for-four reverse stock split of our issued and outstanding shares of common stock and to fix on a post-split basis the number of authorized shares of common stock at 25,000,000 shares, such amendment to be effected prior to our next annual meeting of stockholders in the sole discretion of our board of directors without further approval or authorization of our stockholders; |
5.
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To ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for the fiscal year ending September 30, 2012; and |
6.
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To transact such other business as may properly come before the annual meeting or any adjournment or postponement thereof. |
Important Notice Regarding the Availability of Proxy
Materials for the Annual
Meeting of Stockholders to be Held on March 8, 2012: This proxy statement, a sample of the form of proxy card sent or given to stockholders by Biodel Inc. and the 2011 Annual Report to Stockholders are available at www.biodel.com/annuals.cfm. |
Q:
|
What shares owned by me may be voted? |
A:
|
You may only vote the shares of our common stock owned by you as of the close of business on January 13, 2012, which is the record date for the determination of stockholders entitled to notice of, and to vote at, the Annual Meeting. These shares include the following: |
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shares of common stock held directly in your name as the stockholder of record; and |
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shares of common stock held for you, as the beneficial owner, through a broker, bank or other nominee. |
Q:
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What is the difference between holding shares as a stockholder of record and as a beneficial owner? |
A:
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Most of our stockholders hold their shares through a broker, bank or other nominee, rather than directly in their own names. As summarized below, there are some distinctions between shares held of record and those owned beneficially. |
Q:
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How may I vote my shares at the Annual Meeting? |
A:
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You may vote shares held directly in your name as the stockholder of record in person at the Annual Meeting. If you choose to vote in person at the Annual Meeting, please bring the enclosed proxy card and proof of identification with you to the Annual Meeting. You may vote shares that you beneficially own if you receive and present at the Annual Meeting a proxy from your broker or nominee, together with proof of identification. Even if you plan to attend the Annual Meeting, we recommend that you also submit your proxy as described below so that your vote will be counted if you later decide not to attend the Annual Meeting. |
Q:
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How may I vote my shares without attending the Annual Meeting? |
A:
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Whether you hold shares directly as the stockholder of record or as the beneficial owner in street name, you may direct your vote without attending the Annual Meeting. You may vote by granting a proxy or, for shares held in street name, by submitting voting instructions to your broker or nominee. Whether you are a stockholder of record or a beneficial owner, you may vote without attending the Annual Meeting by marking, dating and signing your proxy card and mailing in the enclosed, self-addressed, postage prepaid envelope. No postage is required if the proxy is mailed in the United States. In addition, beneficial owners may vote without attending the Annual Meeting as follows: |
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By Internet If you have Internet access, you may submit your proxy from any location in the world by following the Internet Voting instructions enclosed with your proxy card. |
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By Telephone You may submit your proxy by following the Telephone Voting instructions enclosed with your proxy card. |
Q:
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How may I revoke a proxy or an Internet or telephone vote? |
A:
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A stockholder executing a proxy card may revoke the proxy at any time before it is exercised by giving written notice revoking the proxy to our corporate secretary, by subsequently filing another proxy bearing a later date, or by attending the Annual Meeting and voting in person. Attendance at the Annual Meeting will not automatically revoke a stockholders prior proxy. All written notices of revocation or other communications with respect to revocation of proxies should be addressed to Biodel Inc., 100 Saw Mill Road, Danbury, Connecticut 06810, attention: corporate secretary. If you own your shares in street name, your bank or brokerage firm should provide you with appropriate instructions for changing your vote. |
Q:
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How does our board of directors recommend that I vote on the proposal to elect the nominees to our board of directors? |
A:
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Our board of directors unanimously recommends that stockholders vote FOR this proposal at the Annual Meeting. |
Q:
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How does our board of directors recommend that I vote on the amendment to our 2010 Stock Incentive Plan to increase the number of shares of common stock authorized for issuance thereunder solely for the purpose of allowing us to issue an aggregate of 1,096,756 restricted stock units to certain of our named executive officers and other employees in place of a discretionary cash bonuses in connection with the fiscal year ended September 30, 2011 (the 2011 Bonus RSUs)? |
A:
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Our board of directors unanimously recommends that stockholders vote FOR this proposal at the Annual Meeting. |
Q:
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How does our board of directors recommend that I vote on the amendment to our Certificate of Incorporation to effect a one-for-two reverse stock split of our issued and outstanding shares of common stock and to fix on a post-split basis the number of authorized shares of common stock at 50,000,000 shares, such amendment to be effected prior to our next annual meeting of stockholders, in the sole discretion of our board of directors without further approval or authorization of our stockholders (the one-for-two Reverse Split)? |
A:
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Our board of directors unanimously recommends that stockholders vote FOR this proposal at the Annual Meeting. |
Q:
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How does our board of directors recommend that I vote on the amendment to our Certificate of Incorporation to effect a one-for-four reverse stock split of our issued and outstanding shares of common stock and to fix on a post-split basis the number of authorized shares of common stock at 25,000,000 shares, such amendment to be effected prior to our next annual meeting of stockholders, in the sole discretion of our board of directors without further approval or authorization of our stockholders (the one-for-four Reverse Split)? |
A:
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Our board of directors unanimously recommends that stockholders vote FOR this proposal at the Annual Meeting. |
Q:
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How does our board of directors recommend that I vote on the proposal to ratify the appointment of BDO USA, LLP as our registered independent public accounting firm for the fiscal year ending September 30, 2012? |
A:
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Our board of directors unanimously recommends that stockholders vote FOR this proposal at the Annual Meeting. |
Q:
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What is the quorum required for the Annual Meeting? |
A:
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Holders of record of the common stock on January 13, 2012 are entitled to notice of, and to vote at, the Annual Meeting or any adjournment or postponement of the Annual Meeting. As of the record date, 38,709,537 shares of common stock were outstanding. The presence, in person, by remote communication, if applicable, or by proxy duly authorized, of the holders of a majority of the outstanding shares of common stock entitled to vote at the Annual Meeting will constitute a quorum for the transaction of business at the Annual Meeting. Shares of our common stock represented in person or by proxy, including broker non-votes and shares that abstain or do not vote with respect to one or more of the matters to be voted upon, will be counted for the purpose of determining whether a quorum exists. |
Q:
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How are votes counted? |
A:
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Each holder of common stock is entitled to one vote at the Annual Meeting on each matter to come before the Annual Meeting, including the election of directors, for each share held by such stockholder as of the record date. Votes cast in person at the Annual Meeting or by proxy, Internet vote or telephone vote will be tabulated by the inspector of election appointed for the Annual Meeting, who will determine whether a quorum is present. |
Q:
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What vote is required on the proposal to elect the nominees to our board of directors? |
A:
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Individual director nominees are elected by a plurality of the votes of the shares present in person, by remote communication, if applicable, or represented by proxy at the Annual Meeting and entitled to vote generally on the election of directors. Accordingly, the directorships to be filled at the Annual Meeting will be filled by the nominees receiving the highest number of votes. In the election of directors, votes may be cast for or withheld with respect to any or all nominees. Abstentions and broker non-votes will have no effect on the outcome of this proposal. |
Q:
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What vote is required on the proposal to amend our 2010 Stock Incentive Plan to allow us to issue the 2011 Bonus RSUs? |
A:
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The increase in shares for the 2011 Bonus RSUs will be approved if we receive the affirmative vote of a majority of shares present in person, by remote communication, if applicable, or represented by proxy at the Annual Meeting and entitled to vote generally. Abstentions and broker non-votes will have no effect on the outcome of this proposal. |
Q:
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What vote is required to approve each of the proposals to amend our Certificate of Incorporation to effect the one-for-two Reverse Split and the one-for-four Reverse Split? |
A:
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Each of the one-for-two Reverse Split and the one-for-four Reverse Split will be approved if we receive the affirmative of the holders of a majority of the shares of our common stock outstanding on the record date for the meeting. Abstentions and broker non-votes, if any, will have the same effect as a vote against these proposals. |
Q:
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What vote is required to ratify the appointment of BDO USA, LLP as our independent registered public accounting firm? |
A:
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The appointment of BDO USA, LLP as our independent registered public accounting firm will be ratified if we receive the affirmative vote of a majority of shares present in person, by remote communication, if applicable, or represented by proxy at the Annual Meeting and entitled to vote generally. Abstentions and broker non-votes will have no effect on the outcome of this proposal. |
Q:
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What does it mean if I receive more than one proxy or voting instruction card? |
A:
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This means your shares are registered differently or are in more than one account. Please provide voting instructions for all proxy and voting instruction cards you receive. |
Q:
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Where can I find the voting results of the Annual Meeting? |
A:
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We will announce preliminary voting results at the Annual Meeting and publish final results in a current report on Form 8-K within four business days of the Annual Meeting. |
Q:
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Is my vote confidential? |
A:
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Proxy cards, ballots and voting tabulations that identify individual stockholders are mailed or returned to us and handled in a manner intended to protect your voting privacy. Your vote will not be disclosed except: (1) as needed to permit us to tabulate and certify the vote; (2) as required by law; or (3) in limited circumstances, such as a proxy contest in opposition to the director candidates nominated by our board of directors. In addition, all comments written on the proxy card or elsewhere will be forwarded to management, but your identity will be kept confidential unless you ask that your name be disclosed. |
Name of Beneficial Owner
|
Amount and Nature
of Beneficial Ownership |
Percent of
Class (%) |
||||||||
---|---|---|---|---|---|---|---|---|---|---|
5%
Stockholders:
|
||||||||||
Great Point
Partners, LLC
|
3,827,375 | 9.89 | ||||||||
OrbiMed
Advisors, LLC
|
2,777,777 | 7.18 | ||||||||
Ayer Capital
Management, LP
|
2,574,099 | 6.65 | ||||||||
Executive
Officers and Directors:
|
||||||||||
Donald Casey
|
42,873 | (1) | * | |||||||
Dr. Errol B.
De Souza
|
507,097 | (2) | 1.29 | |||||||
Dr. Barry
Ginsberg
|
92,669 | (3) | * | |||||||
Dr. Ira
Lieberman
|
128,852 | (4) | * | |||||||
Dr. Daniel
Lorber
|
142,355 | (5) | * | |||||||
Dr. Brian
J.G. Pereira
|
106,814 | (6) | * | |||||||
Dr. Charles
Sanders
|
135,239 | (7) | * | |||||||
Dr. Solomon
S. Steiner
|
2,098,604 | (8) | 5.35 | |||||||
Paul S.
Bavier
|
181,607 | (9) | * | |||||||
Dr. Alan
Krasner
|
232,106 | (10) | * | |||||||
Gerard J.
Michel
|
306,797 | (11) | * | |||||||
Erik Steiner
|
428,579 | (12) | 1.10 | |||||||
All current
executive officers and directors as a group (11 individuals)
|
2,304,988 | (13) | 5.67 |
*
|
Less than one percent. |
(1)
|
Includes options to purchase 39,904 shares of our common stock which are exercisable within 60 days of December 31, 2011. |
(2)
|
Includes options to purchase 440,000 shares of our common stock and 45,000 shares of our common stock subject to restricted stock units (RSUs), which are exercisable or vest within 60 days of December 31, 2011. |
(3)
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Includes options to purchase 85,000 shares of our common stock which are exercisable within 60 days of December 31, 2011. |
(4)
|
Consists of options to purchase 126,883 shares of our common stock which are exercisable within 60 days of December 31, 2011. |
(5)
|
Includes options to purchase 137,198 shares of our common stock which are exercisable within 60 days of December 31, 2011. |
(6)
|
Includes options to purchase 87,877 shares of our common stock which are exercisable within 60 days of December 31, 2011. |
(7)
|
Includes options to purchase 116,143 shares of our common stock which are exercisable within 60 days of December 31, 2011. |
(8)
|
Consists of (i) 1,555,026 shares of our common stock owned by Steiner Ventures LLC, or SV, of which Dr. Steiner is the sole managing member and (ii) options to purchase 543,578 shares of our common stock which are exercisable within 60 days of December 31, 2011. Dr. Steiner and his wife jointly own 52% of SV with the balance split equally among their four adult children, including Erik Steiner. Dr. Steiner disclaims beneficial ownership of the shares held by SV, except to the extent of his pecuniary interest therein. The address for SV is 24 Old Wagon Road, Mt. Kisco, New York 10549. |
(9)
|
Includes options to purchase 113,419 shares of our common stock and 38,400 shares of our common stock subject to RSUs, which are exercisable or vest within 60 days of December 31, 2011. |
(10)
|
Includes options to purchase 167,956 shares of our common stock and 48,200 shares of our common stock subject to RSUs, which are exercisable or vest within 60 days of December 31, 2011. |
(11)
|
Includes options to purchase 217,718 shares of our common stock and 45,700 shares of our common stock subject to RSUs, which are exercisable or vest within 60 days of December 31, 2011. |
(12)
|
Includes options to purchase 158,175 shares of our common stock and 10,000 shares of our common stock subject to RSUs, which are exercisable or vest within 60 days of December 31, 2011. |
(13)
|
Includes options to purchase 1,690,273 shares of our common stock and 187,300 shares of our common stock subject to RSUs, which are exercisable or vest within 60 days of December 31, 2011. |
ELECTION OF DIRECTORS
Name
|
Age
|
Position
|
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Dr. Brian J.G.
Pereira(1)(3)
|
53 | Chairman | ||||||||
Dr. Errol B.
De Souza
|
58 | President and Chief Executive Officer | ||||||||
Donald
Casey(2)(3)
|
51 | Director | ||||||||
Dr. Barry
Ginsberg (1)(2)
|
66 | Director | ||||||||
Dr. Ira W.
Lieberman(2)(3)
|
68 | Director | ||||||||
Dr. Daniel
Lorber(1)(2)
|
64 | Director | ||||||||
Dr. Charles
Sanders
|
79 | Director |
(1)
|
Member of the compensation committee. |
(2)
|
Member of the nominating and governance committee. |
(3)
|
Member of the audit committee. |
Name
|
Age
|
Position
|
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Dr. Errol B.
De Souza
|
58 | President and Chief Executive Officer | ||||||||
Gerard Michel
|
48 | Chief Financial Officer | ||||||||
Dr. Alan
Krasner
|
48 | Chief Medical Officer | ||||||||
Paul Bavier
|
39 | General Counsel and Secretary | ||||||||
Erik Steiner
|
46 | Vice President, Operations |
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our board of directors principal responsibility is to oversee our management; |
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a majority of the members of our board of directors shall be independent directors as defined by NASDAQ listing standards and applicable SEC rules; |
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the independent members of our board of directors regularly meet in executive session; and |
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we adopt written corporate governance guidelines and a written code of business conduct and ethics for all of our officers, employees and directors. |
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oversee the accounting and financial reporting processes of the company and audits of the financial statements of the company; |
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assist our board of directors in oversight and monitoring of the companys financial statements, compliance with legal and regulatory requirements, independent auditors and internal accounting and financial controls; |
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provide to the board of directors such additional information and materials as it may deem necessary to make the board of directors aware of significant financial matters that require the attention of the board of directors; |
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provide an avenue of communication among the independent auditors, management and the board of directors; |
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appoint, evaluate, retain and terminate, when necessary, the companys independent auditor; |
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set the compensation of the companys independent auditor and pre-approve all audit services to be provided to the company; |
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review and discuss with the companys management and independent auditor the companys audited financial statements; |
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recommend to the board of directors that the companys audited financial statements be included in the companys Annual Report on Form 10-K; |
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prepare an annual committee report for inclusion where necessary in the proxy statement of the company relating to its annual meeting of stockholders; |
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coordinate the board of directors oversight of the companys internal control over financial reporting, disclosure controls and procedures and code of conduct; |
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establish procedures for treatment of complaints received by the company regarding accounting, internal accounting controls or auditing matters; |
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review the companys policies and procedures for reviewing and approving or ratifying related person transactions (defined as transactions required to be disclosed pursuant to Item 404 of Regulation S-K), including the companys Related Person Transaction Policy, and recommend any changes to the board of directors; and |
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discuss the companys policies, practices, procedures and controls related to the management of its surplus funds. |
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oversee the discharge of the responsibilities of the board of directors relating to the compensation of the companys executive officers; |
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administer the companys equity-based plans; |
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review and approve, or, in the case of the companys chief executive officer, recommend for approval by the board of directors, the compensation of the companys executive officers; |
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review and make recommendations to the board of directors with respect to director compensation; |
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review and make recommendations to the board of directors with respect to incentive-compensation and equity-based plans that are subject to approval by the board of directors; |
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exercise all rights, authority and functions of the board of directors under all of the companys stock option, stock incentive, employee stock purchase and other equity-based plans; and |
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prepare such reports on executive compensation, including without limitation, a Compensation Discussion and Analysis, for inclusion in the companys Annual Report on Form 10-K and proxy statement. |
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recommend to the board of directors the persons to be nominated for election as directors at any meeting of stockholders and the persons (if any) to be elected by the board of directors to fill any vacancies of the board of directors; |
|
develop and recommend to the board of directors a set of corporate governance guidelines applicable to the company; |
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oversee the evaluation of the board of directors and its committees; |
|
recommend to the board of directors the nominees for election as directors at any meeting of stockholders and the persons to be elected by the board of directors to fill any vacancies on the board of directors; |
|
establish criteria for the selection of new directors to serve on the board of directors, taking into account at a minimum all applicable laws, rules, regulations and listing standards, a potential candidates experience, areas of expertise and other factors relative to the overall composition of the board of directors; |
|
develop and recommend to the board of directors a set of Corporate Governance Guidelines applicable to the company; |
|
review the board of directors leadership structure to assess whether it is appropriate given the specific characteristics or circumstances of the company; and |
|
oversee a review by the board of directors on succession planning for senior executives, which shall include transitional leadership in the event of an unplanned vacancy. |
Name
|
Fees
Earned or Paid in Cash ($) |
Option
Awards ($)(1) |
Stock
Awards ($)(2) |
All Other
Compensation ($) |
Total
($) |
|||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Dr. Brian J.G.
Pereira
|
60,625 | 52,000 | 20,000 | | 132,625 | |||||||||||||||||
Dr. Barry
Ginsberg
|
24,375 | 42,002 | 10,000 | 415 | (3) | 76,792 | ||||||||||||||||
Dr. Ira W.
Lieberman
|
37,500 | 42,002 | 10,000 | | 89,502 | |||||||||||||||||
Dr. Daniel
Lorber
|
24,375 | 42,002 | 10,000 | | 76,377 | |||||||||||||||||
Dr. Charles
Sanders(4)
|
12,063 | 39,750 | 20,000 | | 71,813 | |||||||||||||||||
Donald Casey
|
28,750 | 62,798 | 10,000 | | 101,548 | |||||||||||||||||
J. Arthur
Urciuoli(5)
|
30,136 | 64,224 | 10,000 | | 104,360 | |||||||||||||||||
Dr. Solomon S.
Steiner (6)
|
23,804 | 2,551 | | 26,355 |
(1)
|
The amounts in the Option Awards column represent the grant date fair value of option awards granted in fiscal year 2011, in accordance with ASC Topic 718, or ASC 718, formerly Statement of Financial Accounting Standards No. 123(R). For the assumptions relating to these valuations, see Note 2 to our 2011 audited financial statements, which are included in the annual report that accompanies this Proxy Statement. The following table shows the aggregate number of stock options held by each of our non-employee directors as of September 30, 2011. |
Name
|
Aggregate Number of
Shares Subject to Stock Options |
|||||
---|---|---|---|---|---|---|
Dr. Brian J.G.
Pereira
|
87,877 | |||||
Dr. Barry
Ginsberg
|
85,000 | |||||
Dr. Ira W.
Lieberman
|
126,833 | |||||
Dr. Daniel
Lorber
|
137,198 | |||||
Dr. Charles
Sanders
|
116,143 | |||||
Donald Casey
|
39,904 | |||||
J. Arthur
Urciuoli
|
34,205 |
(2)
|
Reflects grant date fair value of restricted stock units granted in place of cash compensation, in accordance with ASC 718. The number of restricted stock units was determined by dividing the amount of cash compensation relinquished by $5.08, which was the closing price of our common stock on October 1, 2010, the date of grant. |
(3)
|
Consists of fees paid for consulting services performed by Dr. Ginsberg pursuant to a previously existing professional services agreement with us dated February 20, 2009. |
(4)
|
From November 21, 2010 through June 30, 2011, Dr. Sanders compensation for his service on our board of directors was suspended pending his return to active status from a medical leave of absence. |
(5)
|
Effective October 19, 2011, Mr. Urciuoli resigned as a director of the company. |
(6)
|
Effective October 8, 2011, Dr. Steiner resigned as a director of the company. Upon his resignation, he received (i) a single lump sum payment of $45,000, and (ii) an immediately vested and exercisable option to purchase 20,000 shares of the companys common stock under the companys 2010 Stock Incentive Plan, in each case as an approximation of the compensation he would have received had Dr. Steiner remained a member of our board of directors for the remainder of his term. |
|
align executives incentives with the creation of stockholder value; |
|
ensure executive compensation is aligned with our corporate strategies and business objectives; |
|
motivate and reward executives whose knowledge, skills and performance are critical to our business; and |
|
attract and retain superior executive talent. |
|
base salary; |
|
discretionary annual cash bonuses; |
|
equity awards, primarily stock option awards and restricted stock units, or RSUs; |
|
benefits and other compensation; and |
|
severance and change of control benefits. |
Goal
|
Weighting
|
|||||
---|---|---|---|---|---|---|
Advancement
of the product candidate pipeline
|
40 | % | ||||
Advancement
of strategic collaborations
|
40 | % | ||||
Conservation
of cash and extension of cash runway
|
20 | % |
Goal
|
% of Goal
Achieved |
Weighted
Contribution Toward 75% Achievement Level |
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Advancement
of the product candidate pipeline
|
75 | % | 30 | % | ||||||
Advancement
of strategic collaborations
|
38 | % | 15 | % | ||||||
Conservation
of cash and extension of cash runway
|
150 | % | 30 | % | ||||||
Total
Achievement Level
|
75 | % |
Name
|
2011 Annual Salary
|
2012 Annual Salary
|
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Dr. Errol B.
De Souza
|
$ | 450,000 | * | $ | 463,500 | |||||
Gerard J.
Michel
|
$ | 317,067 | $ | 326,000 | ||||||
Dr. Alan
Krasner
|
$ | 311,953 | $ | 321,000 | ||||||
Paul S.
Bavier
|
$ | 209,673 | $ | 217,000 | ||||||
Erik Steiner
|
$ | 204,559 | $ | 210,000 |
*
|
Amount includes a one-time, $50,000, reduction in base salary for fiscal year 2011 through deferral into restricted stock units of initially equivalent value, as described below. |
Name
|
Cash Bonus
Awarded |
Restricted
Stock Units to Replace Cash Bonus |
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Dr. Errol B.
De Souza
|
$ | 168,750 | 225,000 | |||||||
Gerard J.
Michel
|
$ | 86,892 | 115,856 | |||||||
Dr. Alan
Krasner
|
$ | 81,888 | 109,184 | |||||||
Paul Bavier
|
$ | 55,920 | 74,560 | |||||||
Erik Steiner
|
$ | 53,697 | 71,596 |
Name
|
Number of Shares
Underlying Option Grant |
|||||
---|---|---|---|---|---|---|
Dr. Errol B.
De Souza
|
140,000 | |||||
Gerard J.
Michel
|
65,000 | |||||
Dr. Alan
Krasner
|
65,000 | |||||
Paul S.
Bavier
|
55,000 | |||||
Erik Steiner
|
49,000 |
|
a compensation mix overly weighted toward annual bonus awards; |
|
an excessive focus on stock option awards that would cause behavior to drive short-term stock price gains in lieu of long-term value creation; and |
|
unreasonable financial goals or thresholds that would encourage efforts to generate near-term revenue with an adverse impact on long-term success. |
|
Our annual review of corporate and individual objectives of the executive officers aligns these goals with our annual operating and strategic plans and does not encourage unnecessary or excessive risk taking. |
|
Incentive awards are based on a review of a variety of indicators, including both financial performance and strategic achievements, reducing the potential to concentrate on one indicator as the basis of an annual incentive award. |
|
The mixes between fixed and variable and cash and equity compensation are designed to encourage strategies and actions that are in our long-term best interests. |
|
The discretionary authority of our compensation committee and our board of directors allows us to adjust annual bonus funding and payments and reduces business risk associated with our cash bonus program. |
|
Stock option awards vest over a period of time. As a result of the longer time horizon to receive the value of a stock option award, the prospect of short-term or risky behavior is mitigated. |
Name and Principal Position
|
Fiscal
Year |
Salary(1)
($) |
Bonus(2)
($) |
Stock
Awards (3)($) |
Option
Awards (4)($) |
All Other
Compensation ($) |
Total ($)
|
|||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Errol B. De
Souza
|
2011 | 450,000 | (5) | 168,750 | 146,700 | 160,200 | 15,422 | (6) | 941,072 | |||||||||||||||||||||
President and
Chief Executive
|
2010 | 230,192 | | | 1,603,000 | 20,188 | 1,853,380 | |||||||||||||||||||||||
Officer
|
||||||||||||||||||||||||||||||
Gerard J.
Michel
|
2011 | 317,067 | 86,892 | 73,350 | 80,100 | 9,451 | (7) | 566,860 | ||||||||||||||||||||||
Chief
Financial Officer, Vice
|
2010 | 315,595 | | 183,280 | 81,148 | 9,451 | 589,474 | |||||||||||||||||||||||
President of
Corporate
|
2009 | 310,000 | 64,000 | | 49,200 | 2,930 | 426,130 | |||||||||||||||||||||||
Development
and Treasurer
|
||||||||||||||||||||||||||||||
Alan Krasner
|
2011 | 311,953 | 81,888 | 73,350 | 80,100 | 7,599 | (8) | 554,890 | ||||||||||||||||||||||
Chief Medical
Officer
|
2010 | 310,505 | | 203,030 | 82,241 | 8,223 | 603,999 | |||||||||||||||||||||||
|
2009 | 305,000 | 70,000 | | 49,200 | 18,462 | 442,662 | |||||||||||||||||||||||
Paul S. Bavier
|
2011 | 209,673 | 55,920 | 57,050 | 62,300 | 806 | (9) | 385,749 | ||||||||||||||||||||||
General
Counsel and
|
2010 | 208,700 | | 165,110 | 44,284 | 605 | 418,699 | |||||||||||||||||||||||
Corporate
Secretary
|
2009 | 198,417 | 49,500 | 30,750 | | 278,667 | ||||||||||||||||||||||||
Erik Steiner
|
2011 | 204,559 | 53,697 | 24,450 | 22,250 | 7,671 | (10) | 312,627 | ||||||||||||||||||||||
Vice President
Operations
|
2010 | 203,610 | | 19,750 | 46,947 | 3,147 | 273,454 | |||||||||||||||||||||||
|
2009 | 200,000 | 29,000 | | 24,600 | 6,923 | 260,523 | |||||||||||||||||||||||
Solomon S.
Steiner
|
2011 | | | | | 1,385,678 | (11) | 1,385,678 | ||||||||||||||||||||||
Former
President and Chief
|
2010 | 390,184 | | | 229,000 | 58,800 | 677,984 | |||||||||||||||||||||||
Executive
Officer and Former
|
2009 | 375,000 | 48,000 | 61,500 | 34,614 | 519,114 | ||||||||||||||||||||||||
Chief
Scientific Officer
|
(1)
|
The amounts in the Salary column reflect the base salary earned and recorded during fiscal year 2011, fiscal year 2010 and fiscal year 2009, respectively. |
(2)
|
The amounts in the Bonus column reflect the actual amounts awarded to each named executive officer as annual discretionary cash bonuses. The bonuses, if any, were paid in the month of December following the fiscal year for which the bonus was awarded, with the exception of those for fiscal year 2011. At our Annual Meeting, our stockholders will vote on an amendment to our 2010 Stock Incentive Plan to increase the number of shares that may be issued under the 2010 Stock Incentive Plan solely for the purpose of allowing us to issue restricted stock units in place discretionary cash bonuses in connection with the fiscal year ended September 30, 2011. If the 2010 Stock Incentive Plan amendment is not approved, the fiscal year 2011 bonuses will be paid in cash by March 31, 2012. If the 2010 Stock Incentive Plan amendment is approved, RSU awards will be issued in March 2012 and will vest in full on September 30, 2012. |
(3)
|
The amounts in the Stock Awards column represent the grant date fair value of restricted stock units granted in fiscal year 2011, in accordance with ASC 718. For the assumptions relating to valuations of equity awards, see Note 2 to our 2011 audited financial statements, which are included in the annual report that accompanies this Proxy Statement. |
(4)
|
The amounts in the Option Awards column represent the grant date fair value of option awards granted in the respective fiscal years, in accordance with ASC 718. For the assumptions relating to these valuations, see Note 2 to our 2011 audited financial statements, which are included in the annual report that accompanies this Proxy Statement. |
(5)
|
Dr. De Souzas base salary includes a one-time, $50,000, reduction for fiscal year 2011 through deferral into a number of RSUs determined by dividing $50,000 by $5.08, or the fair market value of our common stock on October 1, 2010. The RSUs vested in equal installments on each of December 31, 2010, March 31, 2011, June 30, 2011 and September 30, 2011. See the Fiscal Year 2011 Grants of Plan-Based Awards table below. |
(6)
|
Reflects reimbursement of commuting and temporary living expenses in the amount of $15,422. |
(7)
|
Reflects payment for accrued but unused vacation time. |
(8)
|
Reflects reimbursement of commuting and temporary living expenses. |
(9)
|
Reflects payment for accrued but unused vacation time. |
(10)
|
Reflects payment for accrued but unused vacation time. |
(11)
|
Reflects $1,250,000 in severance payments, as described under the heading Severance Arrangement with Dr. Steiner, below. Also, reflects payment for unused vacation time in the amount of $57,690 and medical costs for two years, as outlined in his severance agreement, in the amount of $77,988. Dr. Steiner served as our president and chief executive officer until March 2010 and then as our chief scientific officer until December 2010, when he retired. |
Name
|
Grant
Date |
All Other
Option Awards: Number of Securities Underlying Options (1)(#) Exercisable |
Exercise or
Base Price of Option Awards ($/Sh) (2) Unexercisable |
Market All
Other Stock Awards: Number of Shares of Stocks or Units) (#) |
Grant Date
Fair Value of Stock and Option Awards(3) |
|||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Errol B.
De Souza
|
10/01/2010 | | | 9,843 | 50,000 | |||||||||||||||||
|
12/14/2010 | 180,000 | 1.63 | | 160,200 | |||||||||||||||||
|
12/14/2010 | | | 90,000 | 146,700 | |||||||||||||||||
Gerard J.
Michel
|
12/14/2010 | 90,000 | 1.63 | | 80,100 | |||||||||||||||||
|
12/14/2010 | | | 45,000 | 73,350 | |||||||||||||||||
Alan
Krasner
|
12/14/2010 | 90,000 | 1.63 | | 80,100 | |||||||||||||||||
|
12/14/2010 | | | 45,000 | 73,350 | |||||||||||||||||
Paul S.
Bavier
|
12/14/2010 | 70,000 | 1.63 | | 62,300 | |||||||||||||||||
|
12/14/2010 | | | 35,000 | 57,050 | |||||||||||||||||
Erik
Steiner
|
12/14/2010 | 25,000 | 1.63 | | 22,250 | |||||||||||||||||
|
12/14/2010 | | | 15,000 | 24,450 |
(1)
|
These awards were approved and effective on the grant dates pursuant to the terms of our 2010 Stock Incentive Plan that were in effect at the time of grant. |
(2)
|
The prices reported in this column represent the closing price of our common stock on the date our board of directors granted the stock options. As of such dates, our 2010 Stock Incentive Plan provided that we use as the exercise price the closing price of our common stock on the NASDAQ Global Market on the most recent trading day preceding the grant date. |
(3)
|
Amounts represent the total grant date fair value of stock options granted in fiscal year 2011 under ASC 718. The assumptions used by us with respect to the valuation of options are set forth in Note 2 to our 2011 audited financial statements, which are included in the annual report that accompanies this Proxy Statement. As of September 30, 2011, the weighted average exercise price of all outstanding options to purchase shares of common stock under all existing stock incentive plans was $8.17, and the weighted average remaining term was six years in each instance. |
Option Awards
|
Stock Awards
|
||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Name
|
Number of
Securities Underlying Unexercised Options (#) Exercisable |
Number of
Securities Underlying Unexercised Options (#) Unexercisable |
Option
Exercise Price ($) |
Option
Expiration Date |
Number of
Shares or Units of Stock that Have not Vested (#) |
Market Value of
Shares or Units of Stock that Have not Vested ($) |
|||||||||||||||||||||
Errol B.
De Souza
|
247,917 | 452,083 | (1) | 4.27 | 3/31/2017 | ||||||||||||||||||||||
|
| 180,000 | (10) | 1.63 | 12/13/2017 | ||||||||||||||||||||||
|
| | | | 90,000 | (11) | $ | 48,600 | |||||||||||||||||||
Solomon S.
Steiner
|
53,138 | | (2) | 1.41 | 12/22/2012 | ||||||||||||||||||||||
|
53,138 | | (2) | 5.65 | 12/14/2013 | ||||||||||||||||||||||
|
53,138 | | (3) | 12.63 | 12/18/2014 | ||||||||||||||||||||||
|
35,000 | | (3) | 18.16 | 6/5/2015 | ||||||||||||||||||||||
|
200,000 | | (3) | 17.92 | 12/3/2015 | ||||||||||||||||||||||
|
50,000 | | (3) | 2.29 | 12/12/2016 | ||||||||||||||||||||||
|
75000 | | (3) | 3.71 | 12/14/2017 | ||||||||||||||||||||||
Gerard J.
Michel
|
93,750 | 31,250 | (4) | 16.78 | 11/20/2015 | ||||||||||||||||||||||
|
20,000 | 20,000 | (8) | 2.29 | 12/12/2016 | ||||||||||||||||||||||
|
8,859 | 26,577 | (9) | 3.71 | 12/14/2017 | ||||||||||||||||||||||
|
| 90,000 | (10) | 1.63 | 12/13/2017 | ||||||||||||||||||||||
|
| | | | 34,800 | (11) | $ | 18,792 | |||||||||||||||||||
|
| | | | 45,000 | (12) | $ | 24,300 | |||||||||||||||||||
Alan
Krasner
|
75,000 | 25,000 | (5) | 15.62 | 5/26/2016 | ||||||||||||||||||||||
|
20,000 | 20,000 | (8) | 2.29 | 12/12/2016 | ||||||||||||||||||||||
|
8,978 | 26,935 | (9) | 3.71 | 12/14/2017 | ||||||||||||||||||||||
|
| 90,000 | (10) | 1.63 | 12/13/2017 | ||||||||||||||||||||||
|
| | | | 38,550 | (11) | $ | 20,817 | |||||||||||||||||||
|
| | | | 45,000 | (12) | $ | 24,300 | |||||||||||||||||||
Paul S.
Bavier
|
26,250 | 8,750 | (6) | 1.63 | 10/11/2015 | ||||||||||||||||||||||
|
11,250 | 3,750 | (7) | 17.92 | 12/3/2015 | ||||||||||||||||||||||
|
12,500 | 12,500 | (8) | 2.29 | 12/12/2016 | ||||||||||||||||||||||
|
4,834 | 14,504 | (9) | 3.71 | 12/14/2017 | ||||||||||||||||||||||
|
| 70,000 | (10) | 1.63 | 12/13/2017 | ||||||||||||||||||||||
|
| | | | 31,350 | (11) | $ | 16,929 | |||||||||||||||||||
|
| | | | 35,000 | (12) | $ | 18,900 |
Option Awards
|
Stock Awards
|
||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Name
|
Number of
Securities Underlying Unexercised Options (#) Exercisable |
Number of
Securities Underlying Unexercised Options (#) Unexercisable |
Option
Exercise Price ($) |
Option
Expiration Date |
Number of
Shares or Units of Stock that Have not Vested (#) |
Market Value of
Shares or Units of Stock that Have not Vested ($) |
|||||||||||||||||||||
Erik
Steiner
|
14,170 | | (2) | 5.65 | 12/14/2013 | ||||||||||||||||||||||
|
21,255 | | (2) | 12.63 | 12/18/2014 | ||||||||||||||||||||||
|
25,000 | | (2) | 18.16 | 6/5/2015 | ||||||||||||||||||||||
|
45,000 | 15,000 | (7) | 17.92 | 12/3/2015 | ||||||||||||||||||||||
|
10,000 | 10,000 | (8) | 2.29 | 12/12/2016 | ||||||||||||||||||||||
|
5,125 | 15,376 | (9) | 3.71 | 12/14/2017 | ||||||||||||||||||||||
|
| 25,000 | (10) | 1.63 | 12/13/2017 | ||||||||||||||||||||||
|
| | | | 3,750 | (11) | $ | 2,025 | |||||||||||||||||||
|
| | | | 15,000 | (12) | $ | 8,100 |
(1)
|
This option vests over four years with 25% vesting on the first anniversary of the grant date and the remainder in equal monthly installments thereafter. The first annual installment vested on April 1, 2011 and an equal amount has vested each month thereafter. The remainder will vest in approximately equal monthly installments. |
(2)
|
These options fully vested as of September 30, 2011. |
(3)
|
These options vested immediately per the terms of the severance agreement with Dr. Steiner. |
(4)
|
This option vested in four equal annual installments. The first three installments vested on November 28, 2008, 2009 and 2010. The final installment vested on November 28, 2011, after the completion of our fiscal year 2011. |
(5)
|
This option vests in four equal annual installments. The first three installments vested on May 27, 2009, 2010 and 2011. The next installment will vest on May 27, 2012, after the completion of our fiscal year 2011. |
(6)
|
This option vested in four equal annual installments. The first three installments vested on October 12, 2008, 2009 and 2011. The final installment vested on October 12, 2011, after the completion of our fiscal year 2011. |
(7)
|
This option vested in four equal annual installments. The first three installments vested on December 4, 2008, 2009 and 2010. The final installment vested on December 4, 2011, after the completion of our fiscal year 2011. |
(8)
|
This option vests in four equal annual installments. The first two installments vested on December 15, 2009 and 2010, respectively. The third installment vested on December 15, 2011, after the completion of our fiscal year 2011. The final installment will vest on December 15, 2012. |
(9)
|
This option vests in four equal annual installments. The first installment vested on December 15, 2010. The second installment vested on December 15, 2011, after the completion of our fiscal year 2011. The next two installments will vest on December 15, 2012 and 2013. |
(10)
|
This option vests over three years: fifty percent the first year and two equal annual installments the remaining two years. The first installment vested on December 14, 2011, after the completion of our fiscal year 2011. The next two installments will vest on December 14, 2012 and 2013. |
(11)
|
These restricted stock units vest in four equal annual installments. The first installment vested on December 15, 2010. The second installment vested on December 15, 2011, after the completion of our fiscal year 2011. The next two installments will vest on December 15, 2012 and 2013. |
(12)
|
These restricted stock units vest over three years: fifty percent on the first anniversary of the grant date and two equal installments on the second and third anniversaries of the grant date. The first installment vested on December 14, 2011, after completion of our fiscal year 2011. The next two installments will vest on December 14, 2012 and 2013. |
|
two times his then current base salary, plus two times his target annual bonus for the fiscal year in which he is terminated, plus the pro rata amount of his target annual bonus for the fiscal year in which he is terminated to be paid in equal installments over a 24 month period; |
|
COBRA benefits until the earlier of the end of the 24th month after the date his employment with us ends or the date his COBRA coverage expires; |
|
24 months of acceleration of his outstanding equity compensation awards; and |
|
full vesting of his outstanding equity compensation awards, if we terminate his employment without cause, or he terminates his employment with us for good reason within 12 months following a change in control, as defined in the De Souza Employment Agreement. |
|
annual base salary earned through the termination date; |
|
in the event the executive satisfied the performance criteria for an annual bonus prior to termination, a portion of the annual bonus based on the number of days worked during the year; |
|
if the performance criteria were not fully satisfied, but our board of directors determines that criteria could have been satisfied had the executive remained employed for the full fiscal year, an amount equal to the average bonus paid to the executive over the last three fiscal years, portioned based on the number of days worked during the year, or the average annual bonus; |
|
any accrued paid time-off; |
|
annual base salary for a period of 18 months following the date of termination; |
|
health insurance and, under certain circumstances, life, disability and other insurance benefits for a period of 18 months or until the executive qualifies for similar benefits from another employer; |
|
150% of the average annual bonus (paid in addition to the bonus described immediately above); |
|
acceleration of all outstanding options; and |
|
extension of the exercisability of options. |
|
cause is generally defined to mean: |
|
the executives refusal to carry out any material duties or any directions or instructions of our board of directors or senior management which are reasonably consistent with those duties; |
|
failure to perform satisfactorily any duties or any directions or instructions of our board of directors or senior management for ten days following written notice of the same; |
|
violation of a local, state or federal law involving the commission of a crime, other than minor traffic violations, or any other criminal act involving moral turpitude; |
|
gross negligence, willful misconduct, or the breach by the executive of his duty to us involving self-dealing or personal profit; |
|
current abuse by the executive of alcohol or controlled substances; deception, fraud, misrepresentation or dishonesty by the executive; or any incident materially compromising the executives reputation or ability to represent us with investors, customers or the public; or |
|
any other material violation of any provision of the change of control agreement for ten days following written notice of the same. |
|
good reason is generally defined to mean: |
|
a failure to grant the executives salary, bonus, and right to participate in fringe benefit programs that are otherwise afforded under the change of control agreement, other than an isolated and inadvertent failure not taken in bad faith that we remedy promptly upon receiving written notice of the same; |
|
a material diminution in the executives position, authority, duties or responsibilities; |
|
our requiring the executive to be based at any office or location that is more than fifty miles from the location of the executives assigned worksite and the executives residence immediately prior to the change of control; |
|
our failure to require any successor to our business (whether by purchase of assets, merger or consolidation) to assume our obligations under the change of control agreement; or |
|
any other material violation of the change of control agreement by us. |
|
annual base salary earned through the termination date; |
|
in the event the executive satisfied the performance criteria for an annual bonus prior to termination, a portion of the annual bonus based on the number of days worked during the year; |
|
if the performance criteria were not fully satisfied, but our board of directors determines that criteria could have been satisfied had the executive remained employed for the full fiscal year, the average annual bonus; |
|
any accrued paid time-off; |
|
annual base salary for a period of 18 months following the date of termination; |
|
health insurance and, under certain circumstances, life, disability and other insurance benefits for a period of 18 months or until the executive qualifies for similar benefits from another employer; |
|
150% of the average annual bonus (paid in addition to the bonus described immediately above); |
|
acceleration of all outstanding options; and |
|
extension of the exercisability of options. |
Named Executive Officer
|
Estimated Total
Value of Cash Payment (Salary, Bonus) |
Estimated Total
Value of Benefits Coverage Continuation(1) |
Estimated Total
Value of Equity Acceleration(2) |
Total Change of
Control Benefits |
||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Errol B. De Souza
|
$ | 2,213,774 | (3) | $ | 67,707 | $ | | $ | 2,281,481 | |||||||||
Gerard J. Michel
|
$ | 642,061 | $ | 47,592 | $ | | $ | 689,653 | ||||||||||
Alan Krasner
|
$ | 631,706 | $ | 47,592 | $ | | $ | 679,298 | ||||||||||
Paul S. Bavier
|
$ | 424,589 | $ | 47,592 | $ | | $ | 472,181 | ||||||||||
Erik Steiner
|
$ | 398,891 | $ | 16,555 | $ | | $ | 415,446 |
Named Executive Officer
|
Estimated Total
Value of Cash Payment (Salary, Bonus) |
Estimated Total
Value of Benefits Coverage Continuation(1) |
Estimated Total
Value of Equity Acceleration(2) |
Total
Termination Benefits |
||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Errol B. De Souza
|
$ | 1,575,000 | $ | 67,707 | $ | | $ | 1,642,706 | ||||||||||
Gerard J. Michel
|
$ | 642,061 | $ | 47,592 | $ | | $ | 689,653 | ||||||||||
Alan Krasner
|
$ | 631,706 | $ | 47,592 | $ | | $ | 679,298 | ||||||||||
Paul S. Bavier
|
$ | 424,589 | $ | 47,592 | $ | | $ | 472,181 | ||||||||||
Erik Steiner
|
$ | 398,891 | $ | 16,555 | $ | | $ | 415,446 |
(1)
|
Consists of medical insurance coverage. The value is based upon the type of insurance coverage we carried for each named executive officer as of September 30, 2011 and is valued at the premiums in effect on September 30, 2011. |
(2)
|
Assumes the exercise and sale of all in-the-money outstanding options held by each named executive officer on September 30, 2011, on which the closing price of our common stock on the Nasdaq Global Market was $0.54. |
(3)
|
Includes potential gross-up payments pursuant to the executive officer employment agreement. |
|
two times his then current base salary, plus two times his target annual bonus for the fiscal year in which his employment ended, plus the pro rata amount of his target annual bonus for the fiscal year in which his employment ended to be paid in equal installments over a 24 month period; |
|
COBRA benefits until the earlier of the end of the 24th month after the date his employment with us ends or the date his COBRA coverage expires; |
|
24 months of acceleration of his outstanding equity compensation awards; and |
|
full vesting of his outstanding equity compensation awards. |
|
In addition, Dr. Steiner has agreed not to compete with us for twenty-four (24) months. |
|
the related persons interest in the related person transaction; |
|
the approximate dollar value of the amount involved in the related person transaction; |
|
the approximate dollar value of the amount of the related persons interest in the transaction without regard to the amount of any profit or loss; |
|
whether the transaction was undertaken in the ordinary course of our business; |
|
whether the terms of the transaction are no less favorable to us than terms that could have been reached with an unrelated third party; |
|
the purpose of, and the potential benefits to us of, the transaction; and |
|
any other information regarding the related person transaction or the related person in the context of the proposed transaction that would be material to investors in light of the circumstances of the particular transaction. |
|
interests arising solely from the related persons position as an executive officer of another entity (whether or not the person is also a director of such entity), that is a participant in the transaction, where (a) the related person and all other related persons own in the aggregate less than a 10% equity interest in such entity, (b) the related person and his or her immediate family members are not involved in the negotiation of the terms of the transaction and do not receive any special benefits as a result of the transaction and (c) the amount involved in the transaction equals less than the greater of $200,000 or 5% of the annual gross revenues of the company receiving payment under the transaction; and |
|
a transaction that is specifically contemplated by provisions of our charter or bylaws. |
Fee Category
|
2011
|
2010
|
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Audit Fees(1)
|
$ | 283,000 | $ | 292,500 | ||||||
Audit-related
Fees
|
$ | | $ | | ||||||
Tax Fees(2)
|
$ | 40,030 | $ | 109,127 | ||||||
All Other
fees
|
$ | | $ | | ||||||
Total Fees
|
$ | 323,030 | $ | 401,627 |
(1)
|
Audit fees consist of fees for the audit of our September 30, 2011 and 2010 financial statements; the audit of our internal controls over financial reporting as of September 30, 2010; the review of the interim financial statements included in our quarterly reports on Form 10-Q; the review of our registration statement on Form S-3 filed on January 13, 2010 and related prospectus supplements filed on August 26, 2010 and May 16, 2011; the review of our registration statement on Form S-8 filed on August 17, 2010; and other professional services provided in connection with statutory and regulatory filings or engagements. |
(2)
|
Tax fees consist of fees for tax compliance services, which relate to preparation of original and amended tax returns and tax payment-planning services. |
Name and Position
|
Dollar
Value ($) |
Number of
2011 Bonus RSUs |
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Dr. Errol B.
De Souza, Chief Executive Officer
|
$ | 168,750 | 225,000 | |||||||
Gerard J.
Michel, Chief Financial Officer
|
$ | 86,892 | 115,856 | |||||||
Dr. Alan
Krasner, Chief Medical Officer
|
$ | 81,888 | 109,184 | |||||||
Paul S.
Bavier, General Counsel
|
$ | 55,920 | 74,560 | |||||||
Erik Steiner,
Vice President of Operations
|
$ | 53,697 | 71,596 | |||||||
All current
executive officers as a group (5 persons)
|
$ | 447,147 | 596,196 | |||||||
All current
directors who are not executive officers as a group (6 persons)
|
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All employees
who are not executive officers as a group (32 persons)
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$ | 375,420 | 500,560 | |||||||
Total
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$ | 822,567 | 1,096,756 |
may be granted on such terms, as the board of directors deems appropriate in the circumstances, notwithstanding any limitations on awards contained in the 2010 Stock Incentive Plan. Substitute awards will not count against the 2010 Stock Incentive Plans overall share limit, except as may be required by the Code.
sells the stock prior to satisfying these waiting periods, then the participant will have engaged in a disqualifying disposition and a portion of the profit will be ordinary income and a portion may be capital gain. This capital gain will be long-term if the participant has held the stock for more than one year and otherwise will be short-term. If a participant sells the stock at a loss (sales proceeds are less than the exercise price), then the loss will be a capital loss. This capital loss will be long-term if the participant held the stock for more than one year and otherwise will be short-term.
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each outstanding share of our common stock would automatically be changed into one half of a share of common stock; |
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the number of shares of common stock subject to our outstanding options, restricted stock units and warrants and the number of shares reserved for future issuances under our stock plans will be reduced by a factor of two, and any applicable exercise price will be appropriately adjusted; |
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the number of authorized shares of common stock under our Certificate of Incorporation would be fixed at 50,000,000; |
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each outstanding share of our Series A convertible preferred stock will become convertible into one half of a share of our common stock; and |
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any other Reverse Split Amendment approved by the stockholders would be deemed abandoned, without any further effect. |
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each outstanding share of our common stock would automatically be changed into one fourth of a share of common stock; |
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the number of shares of common stock subject to our outstanding options, restricted stock units and warrants and the number of shares reserved for future issuances under our stock plans will be reduced by a factor of four, and any applicable exercise price will be appropriately adjusted; |
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the number of authorized shares of common stock under our Certificate of Incorporation would be fixed at 25,000,000; |
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each outstanding share of our Series A convertible preferred stock will become convertible into one fourth of a share of our common stock; and |
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any other Reverse Split Amendment approved by the stockholders would be deemed abandoned, without any further effect. |
1.
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Purpose |
2.
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Eligibility |
3.
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Administration and Delegation |
RESOLVED:
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That the
following paragraph be inserted prior to the first paragraph of Article FOURTH of the Restated Certificate of Incorporation of the Corporation, as
amended:
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That,
effective at 5:00 p.m., eastern time, on the filing date of this Certificate of Amendment of Restated Certificate of Incorporation, as amended, (the
Effective Time), a one-for-two reverse stock split of the Corporations Common Stock (as defined below) shall become effective,
pursuant to which each two shares of Common Stock outstanding and held of record by each stockholder of the Corporation (including treasury shares)
immediately prior to the Effective Time shall be reclassified and combined into one share of Common Stock, $0.01 par value per share, automatically and
without any action by the holder thereof upon the Effective Time and shall represent one share of Common Stock from and after the Effective Time. No
fractional shares of Common Stock shall be issued as a result of such reclassification and combination. In lieu of any fractional shares to which the
stockholder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the average of the high and low trading
prices of the Common Stock on the Nasdaq Global Market during regular trading hours for the five trading days immediately preceding the Effective
Time.
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RESOLVED:
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That, subject to
the approval of the stockholders of the Corporation, the first paragraph of Article FOURTH of the Restated Certificate of Incorporation of the
Corporation, as amended, be and hereby is deleted in its entirety and the following first paragraph of Article FOURTH is inserted in lieu
thereof:
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FOURTH: The
total number of shares of all classes of stock which the Corporation shall have authority to issue is 100,000,000 shares, consisting of (i) 50,000,000
shares of Common Stock, $0.01 par value per share (
Common Stock
), and (ii) 50,000,000 shares of Preferred Stock, $0.01 par value per
share (
Preferred Stock
).
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RESOLVED:
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That the
following paragraph be inserted prior to the first paragraph of Article FOURTH of the Restated Certificate of Incorporation of the Corporation, as
amended:
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That,
effective at 5:00 p.m., eastern time, on the filing date of this Certificate of Amendment of Restated Certificate of Incorporation, as amended, (the
Effective Time), a one-for-four reverse stock split of the Corporations Common Stock (as defined below) shall become effective,
pursuant to which each four shares of Common Stock outstanding and held of record by each stockholder of the Corporation (including treasury shares)
immediately prior to the Effective Time shall be reclassified and combined into one share of Common Stock, $0.01 par value per share, automatically and
without any action by the holder thereof upon the Effective Time and shall represent one share of Common Stock from and after the Effective Time. No
fractional shares of Common Stock shall be issued as a result of such reclassification and combination. In lieu of any fractional shares to which the
stockholder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the average of the high and low trading
prices of the Common Stock on the Nasdaq Global Market during regular trading hours for the five trading days immediately preceding the Effective
Time.
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RESOLVED:
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That, subject to
the approval of the stockholders of the Corporation, the first paragraph of Article FOURTH of the Restated Certificate of Incorporation of the
Corporation, as amended, be and hereby is deleted in its entirety and the following first paragraph of Article FOURTH is inserted in lieu
thereof:
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FOURTH: The
total number of shares of all classes of stock which the Corporation shall have authority to issue is 75,000,000 shares, consisting of (i) 25,000,000
shares of Common Stock, $0.01 par value per share (
Common Stock
), and (ii) 50,000,000 shares of Preferred Stock, $0.01 par value per
share (
Preferred Stock
).
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▼ FOLD AND DETACH HERE AND READ THE REVERSE SIDE ▼ |
ANNUAL MEETING OF STOCKHOLDERS OF
BIODEL INC.
March 8, 2012
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
THE UNDERSIGNED APPOINTS ERROL DE SOUZA AND GERARD MICHEL AND EACH OF THEM, AS PROXIES OF THE UNDERSIGNED, WITH THE FULL POWER OF SUBSTITUTION, AND AUTHORIZES EACH OF THEM TO REPRESENT AND VOTE, AS DESIGNATED ON THE REVERSE HEREOF, ALL OF THE SHARES OF COMMON STOCK OF BIODEL INC., HELD OF RECORD BY THE UNDERSIGNED AT THE CLOSE OF BUSINESS ON JANUARY 13, 2012 AT THE ANNUAL MEETING OF STOCKHOLDERS OF BIODEL INC. TO BE HELD ON MARCH 8, 2012 OR AT ANY ADJOURNMENT THEREOF.
The Board of Directors recommends a vote FOR each of the listed proposals. This Proxy, when properly executed, will be voted as specified above. THIS PROXY REVOKES ALL PRIOR PROXIES GIVEN BY THE UNDERSIGNED. THIS PROXY WILL BE VOTED AS DIRECTED OR IF NO SPECIFICATION IS MADE AND THIS PROXY IS RETURNED, THIS PROXY WILL BE VOTED IN FAVOR OF THE ELECTION OF THE NOMINEES LISTED ABOVE AND IN FAVOR OF THE OTHER PROPOSALS.
PLEASE SIGN, DATE AND MAIL THIS PROXY CARD TO THE COMPANY PROMPTLY.
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▼ FOLD AND DETACH HERE AND READ THE REVERSE SIDE ▼ |
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Please
mark
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PROXY
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1. To elect three Class II directors for a term of three years: |
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2. To approve an amendment to our 2010 Stock Incentive Plan to increase the number of shares of common stock authorized for issuance thereunder solely for the purpose of issuing restricted stock units in place of discretionary cash bonuses. |
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AGAINST |
ABSTAIN |
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ELECTION
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FOR the nominees
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WITHHOLD
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FOR ALL
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3. To approve an amendment to our Second Amended and Restated Certificate of Incorporation to effect a one-for-two reverse stock split at the discretion of our board of directors and to fix on a post-split basis the number of authorized shares of common stock at 50,000,000 shares. |
FOR
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AGAINST
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ABSTAIN
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4. To approve an amendment to our Second Amended and Restated Certificate of Incorporation to effect a one-for-four reverse stock split at the discretion of our board of directors and to fix on a post-split basis the number of authorized shares of common stock at 25,000,000 shares. |
FOR
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ABSTAIN
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5. To ratify the appointment of BDO USA, LLP as independent registered public accounting firm for the fiscal year ending September 30, 2012. |
FOR
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AGAINST
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ABSTAIN
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Signature |
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Signature |
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Date |
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, 2012. |
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Please sign exactly as the name appears on your stock certificate. Joint owners should each sign. When signing as attorney, executor, administrator, trustee or guardian, corporation, please give full title as such. If a corporation, please sign in full corporate name by the President or other authorized officer. If a partnership, please sign in partnership name by an authorized person. |