As filed with the Securities and Exchange Commission on March 28, 2012

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)

Delaware

90-0136863

(State or other jurisdiction of incorporation or organization)

(I.R.S. Employer Identification No.)

100 Saw Mill Road
Danbury, Connecticut

06810

(Address of Principal Executive Offices)

(Zip Code)

2010 Stock Incentive Plan

(Full title of the plan)

Errol B. De Souza

Chief Executive Officer

Biodel Inc.

100 Saw Mill Road

Danbury, Connecticut 06810

(203) 796-5000
(Name, address 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.

(Check one):

  Large accelerated filer £ Accelerated filer £
  Non-accelerated filer £ Smaller reporting company S
(Do not check if a smaller reporting company)




CALCULATION OF REGISTRATION FEE

Title of
securities to be
registered

Amount to be
registered(1)

Proposed
maximum
offering price per
share

Proposed
maximum
aggregate offering
price

Amount of
registration fee

Common Stock, $0.01 par value per share


1,096,756 shares(2)


$0.59 (3)


$647,087(3)


$74.16

(1)

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.

(2)

Effective March 8, 2012, the Registrant’s 2010 Stock Incentive Plan (the "2010 Stock Incentive Plan") was amended to increase the number of shares of common stock authorized for issuance thereunder by 1,096,756 shares for certain limited purposes.  The amount to be registered reflects such additional shares.

(3)

Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low sale prices of the Registrant’s common stock on the Nasdaq Global Market on March 21, 2012.






EXPLANATORY NOTE

This registration statement on Form S-8 is being filed by Biodel Inc. (the "Company") pursuant to General Instruction E to Form S-8 to register 1,096,756 additional shares of the Company's common stock, par value $0.01 per share, issuable pursuant to the 2010 Incentive Plan, which shares are the same class of securities for which the registration statement on Form S-8 (Registration No. 333-168903) was filed by the Company on August 17, 2010. Pursuant to the General Instruction E to Form S-8, the contents of the registration statement on Form S-8 (Registration No. 333-168903) are incorporated herein by reference, except to the extent supplemented, amended or superseded by information set forth in this registration statement on Form S-8.

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8. Exhibits.

The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.




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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 28th day of March, 2012.

BIODEL INC.


By:

/s/ ERROL B. DE SOUZA         

Dr. Errol B. De Souza

Chief Executive Officer

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 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.

Signature

Title

Date

/s/ ERROL B. DE SOUZA
Errol B. De Souza

Chief Executive Officer, Director (Principal executive officer)

March 28, 2012

/s/ GERARD MICHEL
Gerard Michel

Chief Financial Officer and Treasurer (Principal financial and accounting officer)

March 28, 2012

/s/ DONALD M. CASEY
Donald M. Casey

Director

March 28, 2012

/s/ BARRY H. GINSBERG
Barry H. Ginsberg

Director

March 28, 2012

/s/ IRA W. LIEBERMAN
Ira W. Lieberman

Director

March 28, 2012

 

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/s/ DANIEL LORBER
Daniel Lorber

Director

March 28, 2012

/s/ BRIAN J.G. PEREIRA
Brian J.G. Pereira

Director

March 28, 2012

/s/ CHARLES A. SANDERS
Charles A. Sanders

Director

March 28, 2012

 

 

 



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INDEX TO EXHIBITS

Number      

Description

4.1

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))

4.2

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))

5

Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant

23.1

Consent of Wilmer Cutler Pickering Hale and Dorr LLP

(included in Exhibit 5)

23.2

Consent of BDO USA, LLP

24

Power of attorney (included on the signature pages of this registration statement)

99.1

Biodel Inc. 2010 Stock Incentive Plan, as amended March 8, 2012, (incorporated by reference to Exhibit A of the Company’s Definitive Proxy Statement on Schedule 14A, filed January 26, 2012).






Exhibit 5





March 28, 2012

Biodel Inc.

100 Saw Mill Road

Danbury, Connecticut  06810

Re:

2010 Stock Incentive Plan, as amended


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 1,096,756 shares (the “Shares”) of the common stock, par value $.01 per share, of Biodel Inc., a Delaware corporation (the “Company”), issuable under the Company’s 2010 Stock Incentive Plan, as amended (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.



[OPINION002.GIF]




Biodel Inc.
March 28, 2012
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.

Very truly yours,

WILMER CUTLER PICKERING
HALE AND DORR LLP

By:

/s/ S TUART R. N AYMAN                    

Stuart R. Nayman, a Partner







Exhibit 23.2



Consent of Independent Registered Public Accounting Firm


Biodel Inc.

Danbury, Connecticut

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated December 15, 2011, relating to the financial statements of Biodel Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended September 30, 2011.   


/s/BDO USA, LLP

New York, New York

March 28, 2012