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Preliminary
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|
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Confidential,
For Use of the
Commission Only (As Permitted by Rule 14a-6(e)(2))
|
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Definitive
Proxy
Statement
|
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Definitive
Additional
Materials
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Soliciting
Material Pursuant to ss.
240.14a-12
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Payment of Filing Fee (Check
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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:
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(3)
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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):
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(4)
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Proposed maximum aggregate
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transaction:
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paid previously with preliminary
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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
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previous filing by registration statement number, or the Form or
Schedule
and the date of its filing.
|
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Amount Previously Paid:
|
(2)
|
Form, Schedule or Registration
Statement No.:
|
(3)
|
Filing Party:
|
(4)
|
Date Filed:
|
Sincerely,
/s/
Michael S. Weiss
Michael
S. Weiss
Chairman
and Chief Executive
Officer
|
By
Order of the Board of Directors,
/s/
Ronald C. Renaud, Jr.
Ronald
C. Renaud, Jr.
Secretary
|
PROXY
STATEMENT
|
|
QUESTIONS
AND ANSWERS
|
1
|
What
is the purpose of the Annual Meeting?
|
1
|
Who
is entitled to vote at our Annual Meeting?
|
1
|
How
do I vote?
|
1
|
What
is a proxy?
|
1
|
How
will my shares be voted if I vote by proxy?
|
1
|
How
do I revoke my proxy?
|
1
|
Is
my vote confidential?
|
2
|
How
are votes counted?
|
2
|
What
constitutes a quorum at the Annual Meeting?
|
2
|
What
vote is required to elect our directors for a one-year
term?
|
2
|
What
vote is required to ratify KPMG LLP as our independent registered
public
accounting firm for the year ending December 31, 2007?
|
2
|
What
vote is required to amend our certificate of incorporation to increase
the
number of authorized shares of our common stock?
|
3
|
What
vote is required to approve and adopt our 2007 Long-Term Incentive
Plan?
|
3
|
What
percentage of our outstanding common stock do our directors and executive
officers own?
|
3
|
Who
is our independent public accountant? Will they be represented at
the
Annual Meeting?
|
3
|
How
can I obtain a copy of our annual report on Form
10-K?
|
3
|
CORPORATE
GOVERNANCE
|
4
|
Our
Board of Directors
|
4
|
Communicating
with the Board of Directors
|
6
|
Audit
Committee
|
6
|
Compensation
Committee
|
6
|
Nominating
Process
|
7
|
Code
of Ethics
|
7
|
INDEPENDENT
REGISTERED
PUBLIC ACCOUNTING FIRM
FEES AND OTHER MATTERS
|
8
|
Audit
Fees
|
8
|
Audit-Related
Fees
|
8
|
Tax
Fees
|
8
|
All
Other Fees
|
8
|
Pre-Approval
of Services Provided by KPMG
|
8
|
REPORT
OF THE AUDIT COMMITTEE
|
10
|
OUR
EXECUTIVE OFFICERS
|
12
|
Executive
Officers
|
12
|
Employment
Agreements
|
12
|
COMPENSATION
DISCUSSION AND ANALYSIS
|
15
|
EXECUTIVE
COMPENSATION
|
23
|
REPORT
OF THE COMPENSATION COMMITTEE
|
35
|
COMPENSATION
COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
|
36
|
SECTION
16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
|
37
|
RELATED-PERSON
TRANSACTIONS
|
38
|
STOCK
OWNERSHIP OF OUR DIRECTORS, EXECUTIVE OFFICERS, AND 5%
BENEFICIAL OWNERS
|
39
|
PROPOSAL
ONE: ELECTION OF DIRECTORS; NOMINEES
|
41
|
PROPOSAL
TWO: RATIFICATION OF APPOINTMENT OF KPMG LLP AS OUR
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
|
42
|
PROPOSAL
THREE: APPROVAL OF AMENDMENT OF CERTIFICATE OF INCORPORATION TO INCREASE
AUTHORIZED COMMON STOCK
|
43
|
PROPOSAL
FOUR: APPROVAL OF THE 2007 LONG-TERM INCENTIVE
PLAN
|
44
|
ADDITIONAL
INFORMATION
|
51
|
Householding
of Annual Meeting Materials
|
51
|
Stockholder
Proposals for Our 2007 Annual Meeting
|
51
|
Other
Matters
|
51
|
Solicitation
of Proxies
|
51
|
Incorporation
of Information by Reference
|
51
|
|
|
ANNEX
A - Amended and Restated Charter of the Audit
Committee
|
A-1
|
ANNEX
B - Charter of the Compensation Committee
|
B-1
|
ANNEX
C - Related Person Transactions Policy
|
C-1
|
ANNEX
D - Keryx Biopharmaceuticals, Inc. 2007 Incentive
Plan
|
D-1
|
A. |
At
the Annual Meeting, our stockholders will act upon the matters outlined
in
the Notice of 2007 Annual Meeting of Stockholders accompanying this
Proxy
Statement, including (i) the election of six directors to our Board
of
Directors for a term of one year, (ii) the ratification of the appointment
of KPMG LLP as our independent registered public accounting firm
for the
year ending December 31, 2007, (iii) the amendment of our certificate
of
incorporation to increase the number of authorized shares of our
common
stock, (iv) the approval of the 2007 Long-Term Incentive Plan, and
(v) the
transaction of any other business that may properly come before the
2007
Annual Meeting or any adjournment
thereof.
|
A. |
The
record holders of our common stock at the close of business on the
record
date, April 23, 2007, may vote at the Annual Meeting. Each share
of our
common stock is entitled to one vote. There were shares of common
stock
outstanding on the record date and entitled to vote at the Annual
Meeting.
A list of stockholders entitled to vote at the Annual Meeting, including
the address of and number of shares held by each stockholder of record,
will be available for your inspection beginning June 8, 2007, at
our
offices located at 750 Lexington Avenue, New York, New York 10022,
between
the hours of 10:00 a.m. and 5:00 p.m., local time, each business
day.
|
A. |
You
may vote in person at the Annual Meeting or by completing and returning
the enclosed proxy card. To vote, simply mark, sign and date the
enclosed
proxy card, and return it in the enclosed postage-paid envelope.
Alternatively, you may deliver your proxy card to us in person, by
facsimile at (212) 531-5961, or by a courier to our offices at the
address
above. If you hold your shares through a broker, bank, or other nominee,
you will receive separate instructions from the broker, bank, or
nominee
describing how to vote your shares.
|
A. |
A
proxy is a person you appoint to vote your shares on your behalf.
If you
are unable to attend the Annual Meeting, our Board of Directors is
seeking
your appointment of a proxy so that your shares of common stock may
be
voted. If you vote by proxy, you will be designating Michael S. Weiss,
our
Chairman and Chief Executive Officer, and Ronald C. Renaud, Jr.,
our
Senior Vice President, Chief Financial Officer, Secretary and Treasurer,
as your proxies. They may act on your behalf and have the authority
to
appoint a substitute to act as your
proxy.
|
A. |
Your
proxy will be voted according to the instructions you provide on
your
executed proxy card. If
you complete and return your proxy card but do not otherwise provide
instructions on how to vote your shares, your shares will be voted
(i)
“FOR” the individuals nominated to serve as members of our Board of
Directors, (ii) “FOR” the ratification of KPMG LLP as our independent
registered public accounting firm for the year ending December 31,
2007,
(iii) “FOR” the amendment of our certificate of incorporation to increase
the number of authorized shares of our common stock, and (iv) “FOR” the
approval of the 2007 Long-Term Incentive Plan.
Presently, our Board of Directors does not know of any other matter
that
may come before the Annual Meeting. However, your proxies are authorized
to vote on your behalf, using their discretion, on any other business
that
properly comes before the Annual
Meeting.
|
A. |
You
may revoke your proxy at any time before your shares are voted at
the
Annual Meeting by:
|
A. |
Before
the Annual Meeting, our Board of Directors will appoint one or more
inspectors of election for the meeting. The inspectors will determine
the
number of shares represented at the meeting, the existence of a quorum
and
the validity and effect of proxies. The inspectors will also receive,
count, and tabulate ballots and votes and determine the results of
the
voting on each matter that comes before the Annual
Meeting.
|
A. |
In
accordance with Delaware law (the law under which we are incorporated)
and
our amended and restated bylaws, the presence at the Annual Meeting,
by
proxy or in person, of the holders of a majority of the shares of
our
common stock outstanding on the record date constitutes a quorum,
thereby
permitting the stockholders to conduct business at the Annual Meeting.
Abstentions, votes withheld, and broker or nominee non-votes will
be
included in the calculation of the number of shares considered present
at
the Annual Meeting for purposes of determining the existence of a
quorum.
|
A. |
The
affirmative vote of a plurality of the votes of the shares present,
in
person or by proxy, at the Annual Meeting is required for the election
of
each of the nominees for director. “Plurality” means that the nominees
receiving the largest number of votes up to the number of directors
to be
elected at the Annual Meeting will be duly elected as directors.
Abstentions, votes withheld, and broker or nominee non-votes will
not
affect the outcome of director
elections.
|
A. |
The
affirmative vote of a majority of the shares present, in person or
by
proxy, and entitled to vote at the Annual Meeting is required to
approve
the ratification of KPMG LLP as our independent registered public
accounting firm for the year ending December 31, 2007. Abstentions
and
votes withheld will have the same effect as a negative vote. However,
broker or nominee non-votes, and shares represented by proxies reflecting
broker or nominee non-votes, will not have the effect of a vote against
this proposal as they are not considered to be present and entitled
to
vote on this matter.
|
A. |
The
affirmative vote of a majority of the shares present, in person or
by
proxy, and entitled to vote at the Annual Meeting is required to
approve
the amendment of our certificate of incorporation to increase the
number
of authorized shares of our common stock. Abstentions and votes withheld,
and shares represented by proxies reflecting abstentions or votes
withheld, will have the same effect as a negative vote. However,
broker or
nominee non-votes, and shares represented by proxies reflecting broker
or
nominee non-votes, will not have the effect as a vote against this
proposal as they are not considered to be present and entitled to
vote on
this matter.
|
A. |
The
affirmative vote of a majority of the shares present, in person or
by
proxy, and entitled to vote at the Annual Meeting is required to
approve
our 2007 Long-Term Incentive Plan. Abstentions and votes withheld,
and
shares represented by proxies reflecting abstentions or votes withheld,
will have the same effect as a negative vote. However, broker or
nominee
non-votes, and shares represented by proxies reflecting broker or
nominee
non-votes, will not have the effect of a vote against this proposal
as
they are not considered to be present and entitled to vote on this
matter.
|
A. |
As
of April 23, 2007, our directors and executive officers owned
approximately 12.0% of our outstanding common stock. See the discussion
under the heading “Stock Ownership of Our Directors, Executive Officers,
and 5% Beneficial Owners” on page 39 for more
details.
|
A. |
KPMG
LLP, our current independent registered public accounting firm, has
served
as our independent registered public accounting firm since 1996.
The Audit
Committee of our Board of Directors has approved the retention of
KPMG LLP
to audit our financial statements for the year ending December 31,
2007,
and our Board of Directors has asked the stockholders to ratify KPMG
LLP
as our independent registered public accounting firm. If KPMG LLP
is not
ratified as our independent registered public accounting firm by
a
majority of the shares present or represented by proxy, our Audit
Committee will review its future selection of our independent registered
public accounting firm. KPMG LLP will still serve as our independent
registered public accounting firm for the year ending December 31,
2007 if
it is not ratified by our stockholders at the Annual Meeting. We
expect a
representative of KPMG LLP to be present at the Annual Meeting. The
representative will have an opportunity to make a statement and will
be
available to answer your questions.
|
A. |
WE
HAVE FILED OUR ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER
31,
2006, WITH THE SECURITIES AND EXCHANGE COMMISSION, OR THE SEC. THE
ANNUAL
REPORT ON FORM 10-K IS ALSO INCLUDED IN THE 2006 ANNUAL REPORT TO
STOCKHOLDERS ENCLOSED WITH THIS PROXY STATEMENT. YOU MAY OBTAIN,
FREE OF
CHARGE, A COPY OF OUR ANNUAL REPORT ON FORM 10-K, INCLUDING FINANCIAL
STATEMENTS AND EXHIBITS, BY WRITING TO OUR SECRETARY, RONALD C. RENAUD,
JR., OR BY E-MAIL AT INFO@KERYX.COM. UPON REQUEST, WE WILL ALSO FURNISH
ANY EXHIBITS TO THE ANNUAL REPORT ON FORM 10-K AS FILED WITH THE
SEC.
|
Name
|
Age
|
Position
|
Director
Since
|
|||||||
Michael
S. Weiss
|
41
|
Chairman
of the Board; Chief
Executive
Officer
|
2002
|
|||||||
Wyche
Fowler, Jr.
|
66
|
Director
|
2006
|
|||||||
I.
Craig Henderson, M.D
|
65
|
Director;
President
|
2004
|
|||||||
Malcolm
Hoenlein
|
63
|
Director
|
2001
|
|||||||
Jack
Kaye
|
63
|
Director
|
2006
|
|||||||
Eric
Rose, M.D.
|
55
|
Director
|
2004
|
• |
Services
that are permitted, including the audit of our annual financial
statements, the review of our quarterly financial statements, related
attestations, benefit plan audits and similar audit reports, financial
and
other due diligence on acquisitions, and federal, state, and non-US
tax
services; and
|
• |
Services
that may be permitted, subject to individual pre-approval, including
compliance and internal-control reviews, indirect tax services such
as
transfer pricing and customs and duties, and forensic auditing.
|
· |
First,
the Audit Committee is charged with monitoring the preparation of
quarterly and annual financial reports by our management, including
discussions with management and our outside independent registered
public
accounting firm about the preparation of the annual financial statements
and key accounting, reporting and disclosure
matters;
|
· |
Second,
the Audit Committee is responsible for monitoring our relationship
with
our outside independent registered public accounting firm, including
controlling the appointment, retention, compensation and evaluation
of the
independent registered public accounting firm, reviewing the scope
of
audit and non-audit services and related fees (including any other
services being provided to us by the independent registered public
accounting firm), and determining whether the outside independent
registered public accounting firm is independent; and
|
· |
Third,
the Audit Committee oversees management’s implementation of effective
systems of internal controls, including the review of policies relating
to
legal and regulatory compliance, ethics, and conflicts of interests,
and
review of the activities and recommendations of our internal auditing
program.
|
· |
Methods
used to account for significant or unusual transactions;
|
· |
The
effect of any accounting policies in controversial or emerging areas
for
which there is a lack of authoritative guidance or
consensus;
|
· |
The
process used by management to formulate sensitive accounting estimates
and
the basis for the independent registered public accounting firm’s
conclusion regarding the reasonableness of any such estimates; and
|
· |
Any
disagreements with management over the application of accounting
principles, the basis for management’s accounting estimates and the
disclosures necessary in the financial
statements.
|
Name
|
Age
|
Position
|
||
Michael
S. Weiss
|
41
|
Chairman
and Chief Executive Officer
|
||
I.
Craig Henderson, M.D
|
65
|
President
|
||
Ronald
C. Renaud, Jr.
|
38
|
Senior
Vice President, Chief Financial
Officer,
Secretary, and Treasurer
|
||
Mark
Stier
|
46
|
Vice
President and Chief Accounting
Officer
|
· |
111,111
options, quarterly through February 14, 2009;
|
· |
222,222
options on February 14, 2013, provided that Mr. Renaud is employed
on that
date as our Senior Vice President, Chief Financial Officer, Secretary
and
Treasurer. Of this 222,222 options, the amount of options described
below
shall be accelerated upon the occurrence of each of the following
events:
|
· |
111,111
options upon our achieving a total market capitalization of more
than $2
billion or obtaining at least $250 million in working capital;
and
|
· |
111,111
options upon our achieving a total market capitalization of more
than $3
billion or obtaining at least $350 million in working
capital.
|
· |
Michael
S. Weiss, Chairman and Chief Executive
Officer;
|
· |
Ronald
C. Renaud, Jr., Senior Vice President and Chief Financial
Officer;
|
· |
Craig
Henderson, MD, President; and
|
· |
Ron
Bentsur, former Vice President, Finance & Investor
Relations.
|
· |
to
attract and retain outstanding
employees;
|
· |
to
motivate our employees to achieve our business and strategic goals,
both
operational and financial;
|
· |
to
reflect our “pay-for-performance” culture;
and
|
· |
to
compete successfully with peer and other companies in our industry
for key
talent.
|
2005
Peer Group
|
2006
Peer Group
|
Adolor
Allos
Therapeutics
Ariad
Cell
Therapeutics
CollaGenex
Connetics
CuraGen
Cypress
Bioscience
Cytokinetics
Dendreon
Discovery
Labs
Encysive
Geron
Idenix
InterMune
Introgen
Kosan
MannKind
Marshall
Edwards
Momenta
NeoPharm
NitroMed
NPS
Pharmaceuticals
Onyx
Progenics
Rigel
Telik
|
Albany
Molecular Research
Alexion
Pharmaceuticals
Alnylam
Pharmaceuticals
Arena
Pharmaceuticals
Ariad
Pharmaceuticals
AtheroGenics
BioCryst
Pharmaceuticals
Biomarin
Pharmaceuticals
Bruker
BioSciences
CardioVascular
BioTherap
Cepheid
Connetics
CoTherix
deCODE
Genetics
Dendreon
Digene
Corp.
Discovery
Laboratories
Durect
Encysive
Pharmaceuticals
Enzo
Biochem
Exelixis
Geron
Illumina
Immune
Response
Incyte
Intermune
ISIS
Pharmaceuticals
LifeCell
Ligand
Pharmaceutical
MannKind
Martek
Biosciences
Momenta
Pharmaceuticals
Myriad
Genetics
Nastech
Pharmaceutical
NitroMed
Northfield
Laboratories
NPS
Pharmaceuticals
Nuvelo
Orasure
Technologies
Pharmion
Progenics
Pharmaceutical
Regeneron
Pharmaceutical
Renovis
Salix
Pharmaceuticals
Senomyx
Serologicals
Tanox
Telik
Threshold
Pharmaceuticals
Xenoport
|
· |
Chief
Executive Officer - 100% of Base
Salary
|
· |
President
- 50% of Base Salary
|
· |
Chief
Financial Officer - 50% of Base
Salary
|
· |
Clinical
goals related to Sulonex (weighted
55%)
|
· |
Clinical
goals related to KRX-0401 (weighted
25%)
|
· |
Supply
and manufacturing goals related to Sulonex (weighted
30%)
|
· |
Corporate/financial
goals, including managing operational budgets within specified targets
and
capital raising (weighted 15%)
|
· |
near
completion of recruitment of all the patients required for the Sulonex
Phase 3 clinical trial;
|
· |
substantial
progress in scaling-up the manufacturing process to commercial
scale;
|
· |
enrollment
and data from a number of KRX-0401 clinical trials;
and
|
· |
capital
raise of $82.7 million at $18.40 per
share.
|
Name
and
Principal
Position
|
Year
|
Salary
($)
|
Bonus
($)(1)
|
Stock
Awards
($)(2)
|
Option
Awards ($)(2)
|
Non-Equity
Incentive Plan Compensation ($)(3)
|
All
Other Compensation ($)(4)
|
Total
($)
|
|||||||||||||||||
Michael
S. Weiss
Chairman
and Chief
Executive
Officer
|
2006
|
375,000
|
--
|
--
|
6,100,980
|
2,292,500
|
4,824
|
8,773,304
|
|||||||||||||||||
Ronald
C. Renaud, Jr.
Senior
Vice
President
and Chief
Financial
Officer (5)
|
2006
|
241,228
|
150,000
|
191,250
|
892,652
|
107,250
|
--
|
1,582,380
|
|||||||||||||||||
I.
Craig Henderson
President
|
2006
|
300,000
|
75,000
|
--
|
1,571,326
|
117,000
|
--
|
2,063,326
|
|||||||||||||||||
Ron
Bentsur
Former
Vice
President
of Finance
and
Investor
Relations
(6)
|
2006
|
7,367
|
--
|
--
|
1,664,760
|
--
|
--
|
1,672,127
|
(1)
|
Reflects
the value of the special bonus for fiscal year 2006 paid to Mr. Renaud
and
to Dr. Henderson. For a description of these bonuses please see the
Compensation Discussion and Analysis beginning on page 15 of this
Proxy
Statement.
|
(2)
|
Reflects
the amount recognized by the Company in 2006 for financial accounting
purposes relating to stock and option awards, disregarding for this
purpose the estimate of forfeitures related to service-based vesting
conditions. The fair values of these awards and the amounts expensed
in
2006 were determined in accordance with Financial Accounting Standards
Board Statement of Financial Accounting Standards No. 123 (revised
2004)
Share-Based Payment (which we refer to as FAS 123R). The assumptions
used
in determining these amounts are set forth in the Note 7 to our
consolidated financial statements,
which are included in our Annual Report on Form 10-K, filed with
SEC.
|
(3)
|
Reflects
the value of cash performance bonuses paid pursuant to our annual
incentive program described in the Compensation Discussion and Analysis
beginning on page 15 of this Proxy Statement. For Mr. Weiss, this
amount
also includes the milestone-based cash incentive payment earned in
fiscal year 2006.
|
(4)
|
Reflects
the dollar value of payments of life and disability insurance premiums
for
Mr. Weiss.
|
(5)
|
Mr.
Renaud began employment as our Senior Vice President and Chief Financial
Officer on February 14, 2006.
|
(6)
|
Effective
February 14, 2006, Mr. Bentsur resigned from his position as Vice
President, Finance and Investor Relations, Secretary and Treasurer
of
Keryx. He ended his employment with us on March 31, 2006, and continues
to
provide services to Keryx as a consultant.
|
|
|
|
|
Committee
|
Estimated
Future Payouts Under Non-Equity Incentive Plan Awards (1)
|
All
Other Stock Awards: Number of Shares of
|
All
Other Option Awards: Number of Securities
|
Exercise
or Base Price of Option
|
Grant
Date Fair Value
|
|||||||||||||||||||
Name
|
Grant
Date
|
Approval
Date
|
Threshold
($)
|
Target
($)
|
Maximum
($)
|
Stock
or Units (#)
|
Underlying
Options (#)
|
Awards
($/sh)
|
of
Awards
($)
(2)
|
|||||||||||||||||||
Mr.
Weiss
|
01/02/06
(3
|
)
|
12/27/05
|
--
|
--
|
--
|
--
|
1,500,000
|
14.64
|
11,923,200
|
||||||||||||||||||
12/31/06
(4
|
)
|
12/31/06
|
--
|
--
|
--
|
--
|
100,000
|
13.30
|
770,780
|
|||||||||||||||||||
--
|
--
|
--
|
375,000
|
--
|
--
|
--
|
--
|
--
|
||||||||||||||||||||
Mr.
Renaud
|
02/14/06
(5
|
)
|
02/14/06
|
--
|
--
|
--
|
100,000
|
--
|
--
|
1,530,000
|
||||||||||||||||||
02/14/06
(6
|
)
|
02/14/06
|
--
|
--
|
--
|
--
|
500,000
|
15.30
|
3,454,995
|
|||||||||||||||||||
12/31/06
(4
|
)
|
02/14/06
|
--
|
--
|
--
|
--
|
50,000
|
13.30
|
385,390
|
|||||||||||||||||||
--
|
--
|
--
|
137,500
|
--
|
--
|
--
|
--
|
--
|
||||||||||||||||||||
Dr.
Henderson
|
01/2/06
(7
|
)
|
12/27/05
|
--
|
--
|
--
|
--
|
62,500
|
14.64
|
560,744
|
||||||||||||||||||
12/31/06
(4
|
)
|
12/31/06
|
--
|
--
|
--
|
--
|
60,000
|
13.30
|
462,468
|
|||||||||||||||||||
--
|
--
|
--
|
150,000
|
--
|
--
|
--
|
--
|
--
|
||||||||||||||||||||
Mr.
Bentsur
|
01/2/06
(8
|
)
|
12/27/05
|
--
|
--
|
--
|
--
|
50,000
|
14.64
|
331,280
|
||||||||||||||||||
12/31/06
(4
|
)
|
12/31/06
|
--
|
--
|
--
|
--
|
7,500
|
13.30
|
57,809
|
|||||||||||||||||||
--
|
--
|
--
|
67,500
|
--
|
--
|
--
|
--
|
--
|
(1)
|
Represents
target payout values for 2006 cash performance awards. Pursuant to
his
employment agreement, each NEO was eligible to receive a target cash
bonus
reflected as a percentage of base salary, as follows: Mr. Weiss,
100%; Dr.
Henderson, 50%; and Mr. Renaud, 50%. For more information on our
cash
performance bonuses, please see the Compensation Discussion and Analysis
on page 15 of this Proxy Statement. In each case, the actual amount
earned
by each NEO in 2006 is reported under the Non-Equity Incentive Plan
Compensation column in the Summary Compensation Table on page 23
of this
Proxy Statement.
|
(2)
|
Represents
the grant-date fair value of each award, determined pursuant to FAS
123R.
The assumptions used in determining the grant date fair values of
the
stock options are set forth in the Note 7 to our consolidated financial
statements for 2006, which are included in our Annual Report on Form
10-K
for the fiscal year 2006, filed with the
SEC.
|
(3)
|
Award
of 824,000 time-vesting stock options under the 2000 Stock Option
Plan and
676,000 time-vesting stock options under the 2004 Long-Term Incentive
Plan. The Compensation Committee approved these stock option awards
on
December 27, 2005, to be granted on January 2, 2006. The grant date,
January 2, 2006, was a holiday and, as such, there was no reported
sales
price on such date. Therefore, the exercise price is the closing
sales
price on the immediately preceding date on which sales were reported
(December 30, 2005). For more information on our equity grant practice,
please see the Compensation Discussion and Analysis on page 15 of
this
Proxy Statement.
|
(4)
|
Award
of time-vesting stock options under the 2004 Long-Term Incentive
Plan. The
Compensation Committee approved and granted these stock option awards
on
December 31, 2006. The grant date, December 31, 2006, was a holiday
and,
as such, there was no reported sales price on such date. Therefore,
the
exercise price is the closing sales price on the immediately preceding
date on which sales were reported (December 29, 2006). Mr. Bentsur’s award
was for his work as a consultant to the Company.
|
(5)
|
Award
under the 2004 Long-Term Incentive Plan of 50,000 time-vesting restricted
shares and 50,000 shares of restricted stock which vest if we undergo
a
change in control in which the Company is valued at $1.5 billion.
The
Compensation Committee approved and granted this restricted stock
award on
February 14, 2006.
|
(6)
|
Award
of time-vesting stock options under the 2006 CFO Incentive Plan.
The
Compensation Committee approved and granted these stock option awards
on
February 14, 2006.
|
(7)
|
Award
of time-vesting stock options under the 2004 Long-Term Incentive
Plan. The
Compensation Committee approved these stock option awards on December
27,
2005, to be granted on January 2, 2006. For more information on our
equity
grant practice, please see the Compensation Discussion and Analysis
on
page 15 of this Proxy
Statement.
|
(8)
|
Award
of time-vesting stock options under the 2004 Long-Term Incentive
Plan. The
Compensation Committee approved these stock option awards on December
27,
2005, to be granted on January 2, 2006. For more information on our
equity
grant practice, please see the Compensation Discussion and Analysis
on
page 15 of this Proxy Statement.
|
Option
Awards
|
Stock
Awards
|
|||||||||||||||||||||||||||
Name
|
Number
of Securities Underlying Unexercised Options (#)
Exercisable
|
Number
of Securities Underlying Unexercised Options (#)
Unexercisable
|
Equity
Incentive Plan Awards: Number of Securities Underlying Unexercised
Unearned Options (#)
|
Option
Exercise Price ($)
|
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
($)
|
Equity
Incentive Plan Awards: Number of Unearned Shares, Units or Other
Rights
That Have Not Vested(#)
|
Equity
Incentive Plan Awards: Market or Payout Value of Unearned Shares,
Units or
Other Rights That Have Not Vested($)
|
|||||||||||||||||||
Mr.
Weiss
|
3,600,000
(1
|
)
|
--
|
--
|
1.30
|
12/23/12
|
--
|
--
|
--
|
--
|
||||||||||||||||||
218,750
(2
|
)
|
281,250
(2
|
)
|
--
|
11.22
|
01/03/15
|
--
|
--
|
--
|
--
|
||||||||||||||||||
--
|
1,500,000
(3
|
)
|
--
|
14.64
|
01/02/16
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
--
|
100,000
(4
|
)
|
--
|
13.30
|
12/31/16
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
Mr.
Renaud
|
111,111
(5
|
)
|
388,889
(5
|
)
|
--
|
15.30
|
02/14/16
|
--
|
--
|
--
|
--
|
|||||||||||||||||
--
|
--
|
--
|
--
|
--
|
100,000
(19
|
)
|
1,330,000
(20
|
)
|
--
|
--
|
||||||||||||||||||
--
|
50,000
(6
|
)
|
--
|
13.30
|
12/31/16
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
Dr.
Henderson
|
486,111
(7
|
)
|
513,889
(7
|
)
|
--
|
9.25
|
02/05/14
|
--
|
--
|
--
|
--
|
|||||||||||||||||
27,344
(8
|
)
|
35,156
(8
|
)
|
--
|
11.22
|
01/03/15
|
--
|
--
|
--
|
--
|
||||||||||||||||||
--
|
62,500
(9
|
)
|
--
|
14.64
|
01/02/16
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
--
|
60,000
(10
|
)
|
--
|
13.30
|
12/31/16
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
Mr.
Bentsur
|
42,000
(11
|
)
|
--
|
--
|
12.61
|
09/18/10
|
--
|
--
|
--
|
--
|
||||||||||||||||||
14,004
(12
|
)
|
--
|
--
|
5.31
|
11/11/11
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
30,000
(13
|
)
|
--
|
--
|
1.35
|
09/16/12
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
135,000
(14
|
)
|
--
|
--
|
1.10
|
05/01/13
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
27,500
(15
|
)
|
12,500
(15
|
)
|
--
|
4.59
|
01/02/14
|
--
|
--
|
--
|
--
|
||||||||||||||||||
10,938
(16
|
)
|
14,062
(16
|
)
|
--
|
11.22
|
01/03/15
|
--
|
--
|
--
|
--
|
||||||||||||||||||
--
|
50,000
(17
|
)
|
--
|
14.64
|
01/02/16
|
--
|
--
|
--
|
--
|
|||||||||||||||||||
--
|
7,500
(18
|
)
|
--
|
13.30
|
12/31/16
|
--
|
--
|
--
|
--
|
(1)
|
Stock
options awarded to the executive on December 23, 2002. 347,343 options
were granted under the 1999 Stock Option Plan, 1,700,000 options
were
granted under the 2000 Stock Option Plan and 2,002,657 options were
granted under the 2002 CEO Incentive Stock Option Plan. The stock
options
vested as follows: 450,000 on December 23, 2003, eight equal installments
on a quarterly basis thereafter of 112,500, and two equal installments
of
1,350,000 during the 1st
quarter of 2004 and the first quarter of 2006 due to the achievement
of
certain financial milestones as defined in Mr. Weiss’ employment
agreement.
|
(2)
|
Stock
options awarded to the executive on January 3, 2005, under the 2004
Long-Term Incentive Plan. The stock options vested as to one-quarter
of
the options on January 3, 2006 and the remaining options vest in
equal
installments on a quarterly basis through January 3,
2009.
|
(3)
|
Stock
options awarded to the executive on January 2, 2006. 824,000 options
were
issued under the 2000 Stock Option Plan and 676,000 options were
issued
under the 2004 Long-Term Incentive Plan. The stock options vest as
to
one-third of the options on January 2, 2007 and the remaining options
vest
in equal installments on a quarterly basis through January 2,
2009.
|
(4)
|
Stock
options awarded to the executive on December 31, 2006, under the
2004
Long-Term Incentive Plan. The stock options vest as to one-quarter
of the
options on December 31, 2007 and the remaining options vest in equal
installments on a quarterly basis through December 31,
2010.
|
(5)
|
Stock
options awarded to the executive on February 14, 2006, under the
2006 CFO
Incentive Plan. The
stock options vest as to 55,556 options on February 14, 2007, and
as to
13,889 options every three months after February 14, 2007 until February
14, 2009 when 13,888 vests. The vesting dates of 111,111 options
were
accelerated due to the achievement of a milestone as defined in Mr.
Renaud’s employment agreement. The remaining 222,222 options vest on
February 14, 2013, provided, however, that the vesting as to these
options
may be accelerated as follows: (i) 111,111 options will vest upon
the
earlier occurrence of the Company achieving a market capitalization
on a
fully diluted basis of more than $2 billion, or working capital of
at
least $250 million; and (ii) 111,111 options will vest upon the earlier
occurrence of the Company achieving a market capitalization on a
fully
diluted basis of more than $3 billion, or working capital of at least
$350
million
|
(6)
|
Stock
options awarded to the executive on December 31, 2006, under the
2004
Long-Term Incentive Plan. The stock options vest as to one-quarter
of the
options on December 31, 2007, and the remaining options vest in equal
installments on a quarterly basis through December 31,
2010.
|
(7)
|
Stock
options awarded to the executive on February 5, 2004, under the 2004
President Incentive Plan. The stock options vested as to 55,556 options
on
February 5, 2005, and as to 13,889 options every three months after
February 5, 2005 until February 5, 2007, when 13,888 options vest.
The
vesting dates of 333,333 options were accelerated due to the achievement
of certain financial milestones. The remaining 500,000 stock options
vest
on February 5, 2011, provided, however, that the vesting as to these
shares may be accelerated in three increments of 166,66, 166,667
and
166,666 options upon the earlier achievement of certain performance
milestones.
|
(8)
|
Stock
options awarded to the executive on January 3, 2005, under the 2004
Long-Term Incentive Plan. The stock options vested as to one-quarter
of
the options on January 3, 2006 and the remaining options vest in
equal
installments on a quarterly basis through January 3,
2009.
|
(9)
|
Stock
options awarded to the executive on January 2, 2006, under the 2004
Long-Term Incentive Plan. The stock options vest as to one-quarter
of the
options on January 2, 2007 and the remaining options vest in equal
installments on a quarterly basis through January 2,
2010.
|
(10)
|
Stock
options awarded to the executive on December 31, 2006, under the
2004
Long-Term Incentive Plan. The stock options vest as to one-quarter
of the
options on December 31, 2007 and the remaining options vest in equal
installments on a quarterly basis through December 31, 2010.
|
(11) |
Stock
options awarded to the executive on September 18, 2000 under the
2000
Stock Option Plan. The stock options vested as to one-third of the
options
annually through September 18, 2003.
|
(12) |
Stock
options awarded to the executive on November 11, 2001 under the 2000
Stock
Option Plan. The stock options vested quarterly through November
11, 2004.
|
(13) |
Stock
options awarded to the executive on September 16, 2002 under the
2000
Stock Option Plan. The stock options vested as to one-half of the
options
on September 16, 2002 and one-half on September 16, 2003.
|
(14)
|
Stock
options awarded to the executive on May 1, 2003 under the 2000 Stock
Option Plan. The stock options vested as to one-quarter of the options
on
May 1, 2004 and the remaining in equal installments on a quarterly
basis
through May 1, 2006.
|
(15)
|
Stock
options awarded to the executive on January 2, 2004, under the 2000
Stock
Option Plan. The stock options vested as to one-quarter of the options
on
January 2, 2005 and the remaining options vest in equal installments
on a
quarterly basis through January 2,
2008.
|
(16)
|
Stock
options awarded to the executive on January 3, 2005, under the 2004
Long-Term Incentive Plan. The stock options vested as to one-quarter
on
January 3, 2006 and the remaining options vest in equal installments
on a
quarterly basis through January 3,
2009.
|
(17)
|
Stock
options awarded to the executive on January 2, 2006, under the 2004
Long-Term Incentive Plan. The stock options vest as to one-quarter
of the
shares on January 2, 2007 and the remaining options vest in equal
installments on a quarterly basis through January 2,
2010.
|
(18)
|
Stock
options awarded to Mr. Bentsur on December 31, 2006 for consulting
services provided to the Company. The stock options vest as to one-quarter
of the shares on December 31, 2007 and the remaining options vest
in equal
installments on a quarterly basis through December 31,
2010.
|
(19)
|
Restricted
stock awarded to the executive on February 14, 2006, which vest as
to
16,666 shares on February 14, 2007, as to 16,667 shares on February
14,
2008 and as to 16,667 shares on February 14, 2009. The remaining
50,000
shares will vest if we undergo a change in control in which the Company
is
valued at in excess of $1.5 billion.
|
(20)
|
Reflects
the value as calculated using the closing market price of our common
stock
as of the last trading day in 2006, December 29, 2006 ($13.30).
|
Option
Awards
|
|||||||
Name
|
Number
of Shares Acquired on Exercise
(#)
|
Value
Realized
on Exercise
($)
(1)
|
|||||
Mr.
Weiss
|
450,000
|
6,338,709
|
|||||
Mr.
Renaud
|
--
|
--
|
|||||
Dr.
Henderson
|
--
|
--
|
|||||
Mr.
Bentsur
|
35,000
|
619,876
|
(1)
|
Reflects
the value as calculated by the difference between the market price
of our
common stock on the date of exercise, and the exercise price of the
stock
options.
|
Type
of Payment
|
Change
of Control Event or Reorganization Event
|
Termination
without Cause or Resignation For Good Reason
|
Termination
in Anticipation of or Within 12 months Following a Change of Control
or
Reorganization Event
|
Death
or Disability
|
|||||||||
($)
|
($)
|
($)
|
($)
|
||||||||||
CASH
SEVERANCE
|
|||||||||||||
Cash
Severance
|
--
|
667,500
|
(1)
|
1,500,000
|
(1)
|
93,750
|
(2)
|
||||||
Value
of Accelerated Stock
Options
(3)
|
585,000
|
585,000
|
585,000
|
585,000
|
|||||||||
TOTAL
|
585,000
|
1,252,500
|
2,085,000
|
678,750
|
(1) |
Mr.
Weiss’ employment agreement provides that if his employment is terminated
by the Company without Cause or by him for good reason (as those
terms are
defined in the employment agreement), he will receive a severance
payment
equal to one year of his base salary, payable in a lump sum. He also
will
receive a pro rata bonus for the year of termination, payable at
the time
bonuses are paid to other executives. If such termination occurs
in
anticipation of a change in control or within 12 months thereafter,
he
will receive a severance payment equal to two times the sum of his
base
salary and his target bonus for the year of termination, payable
in a lump
sum. Mr.
Weiss’ agreement also provides that the change in control benefits will
be
modified
or
reduced to the maximum amount that could be paid without triggering
an
excise tax under Section
4999 of the Code, if such action would result in a greater after-tax
benefit to Mr. Weiss.
|
(2) |
Mr.
Weiss’ employment agreement provides that if his employment is terminated
by reason of his death or disability, he or his estate will continue
to
receive his base salary for three months.
|
(3) |
Represents
the fair market value of shares underlying outstanding stock options,
all
of which vest and become exercisable upon a change of control or
reorganization event or the termination of his employment by the
Company
without cause, his resignation for good reason, in anticipation of
or
within 12 months following a change of control or reorganization
event, or
by reason of his death or disability, based on $13.30 closing price
as of
December 29, 2006, the last trading day of the most recently completed
fiscal year, less the exercise price of the stock option. Such stock
options also will remain exercisable for two years from the date
of his
termination or the expiration of the original term of the stock options,
whichever occurs first.
|
Type
of Payment
|
Termination
without Just Cause or Resignation For Good Reason
|
Termination
in Anticipation of or Within 12 Months Following a Qualified Change
of
Control
|
Death
or Disability
|
|||||||
($)
|
($)
|
($)
|
||||||||
CASH
SEVERANCE
|
||||||||||
Cash
Severance
|
417,000
|
(1)
|
717,000
|
(1)
|
117,000
|
(2)
|
||||
Value
of Accelerated Stock
Options
(3)
|
88,750
|
(4)
|
2,154,375
|
(4)
|
--
|
|||||
TOTAL
|
505,750
|
2,871,375
|
117,000
|
(1) |
Dr.
Henderson’s employment agreement provides that if his employment is
terminated by the Company without just cause or by the executive
for good
reason (as those terms are defined in the employment agreement),
he will
receive a severance payment equal to one year of his base salary,
payable
in a lump sum. If such termination occurs in anticipation of a change
in
control or within 12 months thereafter, he will receive a severance
payment equal to two years of his base salary, payable in a lump
sum. He
also will receive a pro rata bonus for the year of termination, payable
at
the time bonuses are paid to other
executives.
|
(2) |
Reflects
Dr. Henderson’s earned bonus for 2006 (which would have been unpaid as of
12/31/06).
|
(3) |
Represents
the fair market value of shares underlying outstanding stock options,
all
of which vest and become exercisable based on $13.30 closing price
as of
December 29, 2006, the last trading day of the most recently completed
fiscal year, less the exercise price of the stock
option.
|
(4) |
Pursuant
to Dr. Henderson’s employment agreement, upon his termination of
employment by the Company without just cause or by Dr. Henderson
for good
reason, he will receive one additional year of vesting of all outstanding
stock options. If such termination occurs in anticipation of a change
in
control or within 12 months thereafter, all of his outstanding stock
options will become fully vested. Stock options granted to Dr. Henderson
after the effective date of his employment agreement also will remain
exercisable for two years from the date of his termination or the
expiration of the original term of the stock options, whichever occurs
first.
|
Type
of Payment
|
Change
in
Control
|
Qualified
Change
in
Control
|
Termination
without Just Cause or Resignation For Good Reason
|
Termination
in Anticipation of or Within 12 Months Following a Qualified Change
of
Control
|
Death
or
Disability
|
|||||||||||
($)
|
($)
|
($)
|
($)
|
($)
|
||||||||||||
CASH
SEVERANCE
|
||||||||||||||||
Cash
Severance
|
--
|
--
|
--
|
657,250
|
(1)
|
68,750
|
(2)
|
|||||||||
Value
of Accelerated
Restricted
Stock Grant (3)
|
665,000
|
(4)
|
1,330,000
|
(5)
|
665,000
|
(4)
|
1,330,000
|
(5)
|
--
|
|||||||
TOTAL
|
665,000
|
1,330,000
|
665,000
|
1,987,250
|
68,750
|
(1)
|
Mr.
Renaud’s employment agreement provides that if his employment is
terminated in anticipation of a qualified change in control or within
12
months thereafter, he will receive a severance payment equal to two
years
of his base salary, payable in a lump sum. He also will receive a
pro rata
bonus for the year of termination, payable at the time bonuses are
paid to
other executives.
|
(2) |
Mr.
Renaud’s employment agreement provides that if his employment is
terminated by reason of his death or disability, he or his estate
will
continue to receive his base salary for three months.
|
(3) |
Represents
the fair market value of shares of restricted stock, based on $13.30
closing price as of December 29, 2006, the last trading day of the
most
recently completed fiscal year.
|
(4) |
Pursuant
to the terms of Mr. Renaud’s employment agreement, 50,000 unvested shares
of restricted stock granted to him in connection with his employment
agreement will vest upon the occurrence of a change in control, or
termination without just cause or resignation for good reason.
|
(5) |
Pursuant
to the terms of Mr. Renaud’s employment agreement, all unvested shares of
restricted stock granted to him in connection with his employment
agreement will become fully vested upon a qualified change in control
or
his termination by the Company without cause or his resignation for
good
reason in anticipation of or within 12 months of a qualified change
of
control.
|
Name
|
Fees
Earned or Paid in Cash ($)
|
Option
Awards ($)(9)
|
Total
($)
|
|||||||
Wyche
Fowler
|
20,417
(1
|
)
|
29,543
|
49,960
|
||||||
Malcolm
Hoenlein
|
42,500
(2
|
)
|
140,959
|
183,459
|
||||||
Jack
Kaye
|
40,000
(3
|
)
|
28,229
|
68,229
|
||||||
Lawrence
Jay Kessel, M.D
|
9,375
(4
|
)
|
428,687
|
438,062
|
||||||
Eric
Rose
|
39,167
(5
|
)
|
280,555
|
319,722
|
||||||
Lindsay
A. Rosenwald, M.D
|
41,875
(6
|
)
|
63,600
|
105,475
|
||||||
Peter
Salomon, M.D.
|
9,375
(7
|
)
|
424,871
|
434,246
|
||||||
Jonathan
Spicehandler, M.D.
|
28,333
(8
|
)
|
186,215
|
214,548
|
(1) |
In
November 2006, Senator Wyche Fowler, Jr. was appointed to the Board
of Directors by unanimous vote of the directors. Represents the
retainer paid in 2006 for Board of Directors services for the period
from
November 2006 to May 2007.
|
(2) |
Includes
$8,333 retainer paid in 2006 for services for the period from January
2006
to May 2006, and $34,167 retainer paid in 2006 for services for the
period
from June 2006 to May 2007.
|
(3) |
In
September 2006, Jack Kaye was appointed to the Board of Directors
by
unanimous vote of the directors. Represents the retainer paid in
2007 for
Board services for the period from October 2006 to May 2007.
|
(4) |
Includes
$9,375 retainer paid in 2006 for services for the period from January
2006
to May 2006. Dr. Kessel was not nominated for re-election in June
2006.
|
(5) |
Includes
$8,333 retainer paid in 2006 for Board for the period from January
2006 to
May 2006, and $30,834 retainer paid in 2006 for Board for the period
from
June 2006 to May 2007.
|
(6) |
Includes
$9,375 retainer paid in 2006 for Board services for the period from
January 2006 to May 2006, and $32,500 retainer paid in 2006 for services
for the period from October 2006 to May 2007. In November 2006, Dr.
Lindsay A. Rosenwald resigned as a member of the Board of Directors.
Although Dr. Rosenwald did not provide services to the Board of Directors
after his resignation in November 2006, he was not required to forfeit
any
portion of the retainer paid for October 2006 through May
2007.
|
(7) |
Includes
$9,375 retainer paid in 2006 for services for the period from January
2006
to May 2006. Dr. Salomon was not nominated for re-election in June
2006.
|
(8) |
Includes
$8,333 retainer paid in 2006 for services for the period from January
2006
to May 2006, and $20,000 retainer paid in 2006 for services for the
period
from June 2006 to May 2007. Jonathan Spicehandler, M.D. passed away
in
July 2006. Dr. Spicehandler’s estate was not required to forfeit any
portion of the retainer after his
death.
|
(9) |
Represents
the
amount recognized by the Company in 2006 for financial accounting
purposes
relating to option awards, disregarding for this purpose the estimate
of
forfeitures related to service-based vesting conditions. The fair
values
of these awards and the amounts expensed in 2006 were determined
in
accordance with FAS 123R. The assumptions used in determining these
amounts are set forth in the Note 7 to our consolidated financial
statements, which are included in our Annual Report on Form 10-K
for
fiscal year 2006, filed with the
SEC.
|
Name
|
Grant
Date
|
Stock
Options (#)
|
Full
Grant Date Fair Value of Award ($)
|
|||||||
Mr.
Fowler
|
11/07/06
|
50,000
|
354,515
|
|||||||
Mr.
Hoenlein
|
06/09/06
|
10,000
|
43,422
|
|||||||
Mr.
Kaye
|
09/19/06
|
50,000
|
338,745
|
|||||||
Dr.
Kessel *
|
--
|
--
|
--
|
|||||||
Dr.
Rose
|
06/09/06
|
10,000
|
43,422
|
|||||||
Dr.
Rosenwald
|
06/09/06
|
10,000
|
43,422
|
|||||||
Dr.
Salomon *
|
--
|
--
|
--
|
|||||||
Dr.
Spicehandler
|
01/04/06
|
50,000
|
465,535
|
|||||||
06/09/06
|
10,000
|
43,422
|
Name
|
Stock
Options (#)
|
|||
Mr.
Fowler
|
50,000
|
|||
Mr.
Hoenlein
|
100,000
|
|||
Mr.
Kaye
|
50,000
|
|||
Dr.
Kessel*
|
45,000
|
|||
Dr.
Rose
|
115,000
|
|||
Dr.
Rosenwald
|
50,000
|
|||
Dr.
Salomon*
|
49,400
|
|||
Dr.
Spicehandler
|
60,000
|
· |
$20,000
annual retainer; and
|
· |
$2,500
additional annual retainer for each member of the Audit
Committee.
|
· |
$30,000
annual retainer;
|
· |
$5,000
additional annual retainer for each committee assignment;
and
|
· |
$25,000
additional annual retainer for Chairman of the Audit
Committee.
|
· |
Initial
Option Grant.
Non-employee directors receive options to purchase 50,000 shares
of our
common stock upon initial election or appointment to the Board of
Directors. Options are granted on the date that he or she first becomes
a
non-employee director. Prior to September 19, 2006, the options vested
as
to one-quarter of the shares on the first anniversary of the date
of
grant, and the remaining options vested quarterly thereafter. After
September 19, 2006, the initial options will vest in equal annual
instalments over three years, beginning on first anniversary of the
date
of grant.
|
· |
Re-election
Option Grant.
Non-employee directors receive options to purchase 10,000 shares
of our
common stock upon each re-election to the Board of Directors. The
options
vest as to 5,000 shares on the date of grant and as to 5,000 shares
on the
first anniversary of the date of grant. Re-election options are granted
on
the business day following the adjournment of the annual meeting
of
stockholders.
|
· |
Three-Year
Anniversary Option Grant.
Non-employee directors receive options to purchase 30,000 shares
of our
common stock upon completion of three years of service on the Board
of
Directors. The options vest as to one-third of the shares each year
beginning on the first anniversary of the date of the grant. Three-year
anniversary options are granted on the business day following the
adjournment of the next annual meeting of stockholders, if such
non-employee director still serves on such
date.
|
Name
and Address of Beneficial Owner (1)
|
Amount
and Nature
of
Beneficial
Ownership
|
Percentage
of Shares Outstanding
|
|||||
College
Retirement Equities Fund (2)
|
4,391,641
|
10.1
|
%
|
||||
Franklin
Resources, Inc. (3)
|
3,628,260
|
8.3
|
%
|
||||
Chilton
Investment Company, LLC (4)
|
2,266,248
|
5.2
|
%
|
||||
Ron
Bentsur (5)
|
283,192
|
--*
|
|||||
Wyche
Fowler, Jr.
|
--
|
--
|
|||||
I.
Craig Henderson, M.D (6)
|
554,688
|
1.3
|
%
|
||||
Malcolm
Hoenlein (7)
|
100,000
|
--*
|
|||||
Jack
Kaye
|
--
|
--
|
|||||
Ronald
C. Renaud, Jr. (8)
|
191,249
|
--*
|
|||||
Eric
Rose, M.D. (9)
|
83,750
|
--*
|
|||||
Michael
S. Weiss (10)
|
4,713,635
|
9.8
|
%
|
||||
All
current directors and named executive officers as a group
(11)
|
5,926,513
|
12.0
|
%
|
(1)
|
The
address of each of the directors and officers listed is c/o Keryx
Biopharmaceuticals, Inc., 750 Lexington Avenue, New York, New York
10022.
|
(2)
|
The
address of College Retirement Equities Fund is 730 Third Avenue,
New York,
New York 10017. TIAA-CREF Investment Management, LLC ("Investment
Management") acts as an investment adviser to the College Retirement
Equities Fund ("CREF"), a registered investment company, and may
be deemed
to be beneficial owner of 4,016,572 shares of Company's common stock
owned
by CREF. Teachers Advisors, Inc. ("Advisors") is the investment adviser
to
a registered investment company, TIAA-CREF Institutional Mutual Funds
(Institutional Funds"), and may be deemed to be beneficial owner
of
375,069 shares of Company's common stock owned by Institutional Funds.
Each of Investment Management and Advisors expressly disclaims beneficial
ownership of the other's securities holdings and each disclaims that
it is
a member of a "group" with the other. This information is based on
a
Schedule 13G filed on January 10,
2007.
|
(3)
|
The
address of Franklin Resources, Inc. is One Franklin Parkway, San
Mateo,
California 94403. Franklin Resources, Inc. beneficially owns 3,628,260
shares of Keryx common stock by virtue of serving as investment manager
to
one or more open or closed end investment companies or managed accounts.
As owners of at least 10% of the stock of Franklin Resources, Inc.,
Charles B. Johnson and Rupert H. Johnson, Jr. are also each deemed
to own
3,628,260 shares of Keryx common stock. This information is based
on the
Schedule 13G filed on February 5,
2007.
|
(4)
|
The
address of Chilton Investment Company, LLC is 1266 East Main Street,
7th
Floor, Stamford, CT 06902. This information is based on a Schedule
13G
filed on February 14, 2007.
|
(5)
|
Includes
283,192 shares of our common stock issuable upon the exercise of
options.
As of February 14, 2006, Mr. Bentsur no longer served as an executive
officer of Keryx Biopharmaceuticals, Inc.
|
(6)
|
Includes
554,688 shares of our common stock issuable upon the exercise of
options.
|
(7)
|
Includes
100,000 shares of our common stock issuable upon the exercise of
options.
|
(8)
|
Includes
180,556 shares of our common stock issuable upon the exercise of
options.
|
(9)
|
Includes
83,750 shares of our common stock issuable upon the exercise of
options.
|
(10)
|
Includes
4,506,250 shares of our common stock issuable upon the exercise of
options. Also includes 192,385 shares of our common stock currently
held
by Dr. Rosenwald, a former director, all of which Mr. Weiss has the
irrevocable right to purchase from Dr. Rosenwald upon the exercise
of an
option granted to Mr. Weiss by Dr.
Rosenwald.
|
(11)
|
Includes
5,900,820 shares of our common stock issuable upon the exercise of
options.
|
THE
BOARD OF DIRECTORS UNANIMOUSLY
RECOMMENDS A VOTE “FOR” THE APPROVAL OF THE AMENDMENT OF CERTIFICATE OF
INCORPORATION TO
INCREASE THE NUMBER OF AUTHORIZED COMMON STOCK.
PROXIES SOLICITED BY THE BOARD OF DIRECTORS WILL BE SO VOTED UNLESS
THE
STOCKHOLDER SPECIFIED OTHERWISE. THE AFFIRMATIVE VOTE OF THE HOLDERS
OF A
MAJORITY OF THE SHARES OF COMMON STOCK REPRESENTED AND ENTITLED TO
VOTE AT
THE ANNUAL MEETING AT WHICH A QUORUM IS PRESENT IS REQUIRED FOR APPROVAL
AND RATIFICATION.
|
· |
options
to purchase shares of the
Company’s common stock,
which may be designated under the Code as nonstatutory stock options
(which may be granted to all participants ) or incentive stock options
(which may be granted to officers and employees but not to non-employee
directors or consultants);
|
· |
stock
appreciation rights (SARs), which give the holder the right to receive
the
difference (payable in cash or stock, as specified in the award agreement)
between the fair market value per share of the
common
stock on the date of exercise over the base price of the award (which
cannot be less than the fair market value of the underlying stock
as of
the grant date);
|
· |
restricted
stock, which is subject to restrictions on transferability and subject
to
forfeiture on terms set by the Compensation
Committee;
|
· |
restricted
or deferred stock units, which represent the right to receive shares
of
common stock (or an equivalent value in cash or other property, as
specified in the award agreement) in the future, based upon the attainment
of stated vesting or performance criteria in the case of restricted
stock
units;
|
· |
performance
awards, which are awards payable in cash or stock upon the attainment
of
specified performance goals;
|
· |
dividend
equivalents, which entitle
the holder of an award to cash payments (or an equivalent value payable
in
stock or other property) equal to any dividends paid on the shares
of
stock underlying the award;
|
· |
other
stock-based awards in the discretion of the Compensation Committee,
including unrestricted stock grants;
and
|
· |
cash-based
awards.
|
Type
of Award
|
Shares
|
|||
Options
|
6,000,000
|
|||
Stock
Appreciation Rights
|
6,000,000
|
|||
Restricted
Stock or Stock Units
|
6,000,000
|
|||
Other
Stock-Based Awards
|
6,000,000
|
· |
revenue;
|
· |
sales;
|
· |
profit
(net profit, gross profit, operating profit, economic profit, profit
margins or other corporate profit
measures);
|
· |
earnings
(EBIT, EBITDA, earnings per share, or other corporate earnings
measures);
|
· |
net
income (before or after taxes, operating income or other income
measures);
|
· |
cash
(cash flow, cash generation, working capital, or other cash
measures);
|
· |
stock
price or performance;
|
· |
total
stockholder return (stock price appreciation plus reinvested
dividends);
|
· |
return
on equity;
|
· |
return
on assets;
|
· |
return
on investment;
|
· |
market
share;
|
· |
improvements
in capital structure;
|
· |
expenses
(expense management, expense ratio, expense efficiency ratios or
other
expense measures);
|
· |
business
expansion or consolidation (acquisitions, divestitures, in-licensing,
or
product acquisitions);
|
· |
market
capitalization;
|
· |
clinical
and regulatory milestones;
|
· |
corporate
financing activities;
|
· |
supply,
production, and manufacturing milestones;
and
|
· |
corporate
partnerships or strategic
alliances.
|
· |
all
outstanding options and SARs will become fully vested and exercisable;
|
· |
all
time-based vesting restrictions on outstanding awards will lapse;
and
|
· |
the
target payout opportunities attainable under all outstanding
performance-based awards will vest based on target or actual performance
(depending on the time during the performance period in which the
change
in control occurs) and the awards will payout on a prorata basis,
based on
the time elapsed prior to the change in control,
and
|
· |
all
of that participant’s outstanding options and SARs will become fully
vested and exercisable;
|
· |
all
time-based vesting restrictions on that participant’s outstanding awards
will lapse; and
|
· |
the
target payout opportunities attainable under all of that participant’s
outstanding performance-based awards will vest based on target or
actual
performance (depending on the time during the performance period
in which
the date of termination occurs) and the awards will payout on a prorata
basis, based on the time elapsed prior to the date of
termination.
|
Equity
Compensation Plan Information
|
||||||||||
Plan
Category
|
Number
of securities to be issued upon exercise of outstanding
options
|
Weighted-average
exercise price of outstanding options
|
Number
of securities remaining available for future issuance under equity
compensation plans (excluding securities reflected in column
(a))
|
|||||||
|
(a)
|
(b)
|
(c)
|
|||||||
Equity
compensation plans approved by security holders
|
7,187,056
|
$
|
9.09
|
152,158
|
||||||
Equity
compensation plans not approved by security holders
|
3,562,657
|
$
|
5.48
|
—
|
||||||
Total
|
10,749,713
|
$
|
7.90
|
152,158
|
· |
It
must consist of at least three members of the Board of Directors,
all of
whom shall meet the independence and experience requirements in accordance
with applicable laws, including the rules and regulations of the
Nasdaq
Stock Market (“Nasdaq”) or such other exchange on which shares of the
common stock of the Company are traded, Section 10A of the Securities
Exchange Act of 1934 (the “Exchange Act”) and all other applicable rules
and regulations of the SEC.
|
· |
No
member of the Committee shall have participated in the preparation
of the
financial statements of the Company or any current subsidiary of
the
Company at any time during the past three years.
|
· |
At
least one member of the Committee shall be an “audit committee financial
expert” within the meaning set forth by the rules of the SEC.
|
· |
Each
member must be able to read and understand fundamental financial
statements, including the Company’s balance sheet, income statement and
cash flow statement.
|
· |
At
least one member of the Committee must have past employment experience
in
finance or accounting, requisite professional certification in accounting,
or any other comparable experience or background which results in
such
member’s financial sophistication, including being or having been a chief
executive officer, chief financial officer or other senior officer
with
financial oversight responsibilities.
|
1. |
Review
and reassess the adequacy of the Audit Committee Charter and the
performance of the Committee at least annually, and update the Audit
Committee Charter as conditions
dictate.
|
2. |
Review
and discuss with management and the independent auditors the Company’s
annual and quarterly financial statements and related footnotes and
any
reports or other financial information submitted to the Company’s
stockholders, any governmental body, or the public, including any
certification, report, opinion, or review rendered by the independent
auditors.
|
3. |
Meet
quarterly with financial management and with the independent auditors
to
discuss:
|
a. |
The
annual audited financial statements and the quarterly financial statements
prior to any SEC filings, including, in each case, a review of the
Company’s disclosures under “Management’s Discussion and Analysis of
Financial Condition and Results of Operations.”
|
b. |
The
type and presentation of information included in press releases of
unaudited interim and annual financial results, including, without
limitation, the use of “pro forma” or other “adjusted” financial
information not prepared in accordance with generally accepted accounting
principles.
|
c. |
The
type and presentation of financial information and earnings guidance
provided to analysts and ratings
agencies.
|
4. |
Recommend
to the Board of Directors whether or not the Company should include
its
financial statements in its annual report on Form 10-K, based on
the
Committee’s review of the Company’s financial statements, its discussions
with the independent auditors of the Company’s accounting practices and
its discussions with the outside auditor concerning independence
of the
outside auditor.
|
5. |
Disclose,
as required by the applicable securities laws, in the Company’s proxy
statement or annual report on Form 10-K, the formal written report
of the
Committee and all other required information concerning the Committee
and
its function.
|
6. |
Review,
in consultation with management, the Company’s policies with respect to
risk assessment and risk
management.
|
7. |
Discuss,
prior to any public release or filing, the Company’s earnings press
releases, as well as financial information and earnings guidance
provided
to analysts and rating agencies.
|
1. |
In
the Committee’s sole discretion, control the retention, compensation,
evaluation and oversight of the independent auditors, considering
their
independence and effectiveness, and determine the fees and other
compensation to be paid to the independent
auditors.
|
2. |
Advise
the independent auditors that they are ultimately accountable to
Board of
Directors and the Committee, as representatives of the
stockholders.
|
3. |
On
an annual basis, receive from the independent auditors the formal
written
disclosure and letter required by Independence Standards Board Standard
No. 1, and discuss with the independent auditors all significant
relationships the auditors have with the Company that may impact
the
objectivity and independence of the independent
auditor.
|
4. |
Review
with the independent auditors at a time when the annual audit plan
is
being developed, the plan’s timing, scope, staffing, locations,
foreseeable issues, priorities and procedures and help to coordinate
the
execution of the plan.
|
5. |
Take
appropriate action to oversee the independence of the independent
auditors, including review and approval of any terms of any audit
or
non-audit engagements with the independent
auditors.
|
6. |
Review
the performance of the independent auditors and recommend discharge
of the
independent auditors when circumstances
warrant.
|
7. |
Periodically
consult with the independent auditors, out of the presence of management,
about (a) the adequacy and effectiveness of the Company’s internal
controls, (b) the fullness and accuracy of the organization’s financial
statements, (c) the adequacy and effectiveness of the Company’s disclosure
controls and procedures, (d) the Company’s internal audit procedures, and
(e) any related significant findings and recommendations of the
independent auditors together with management’s responses
thereto.
|
8. |
At
least annually, obtain, review, and report to the full Board of Directors
the results of the Committee’s review of, a report from the independent
auditors describing (a) the independent auditors’ internal quality control
procedures, (b) any material issues raised by the most recent internal
quality-control review, or peer review, of the independent auditors
or by
any inquiry or investigation by governmental or professional authorities
within the preceding five years concerning any of the independent
audits
carried out by the independent auditors, as well as the steps taken
to
deal with such issues, and (c) all relationships between the Company
and
the independent auditors.
|
9. |
Obtain
from the independent auditors assurance that Section 10A(b) of the
Exchange Act has not been
implicated.
|
10. |
Establish
clear hiring policies relating to the retention by the Company of
current
or former employees of the independent
auditors.
|
1. |
In
consultation with the independent auditors, review the integrity
of the
Company’s internal and external financial reporting
processes.
|
2. |
Consult
with the independent auditors and management about the independent
auditors’ judgments concerning not only the acceptability, but also the
quality and appropriateness of the Company’s accounting principles as
applied in its financial reporting.
|
3. |
Consider
and approve, if appropriate, major changes to the Company’s auditing and
accounting principles and practices as suggested by the independent
auditors or management.
|
1. |
Establish
regular and separate systems of reporting to the Committee by each
of
management and the independent auditors regarding any significant
judgments made in management’s preparation of the financial statements and
the view of each as to the appropriateness of such
judgment.
|
2. |
Following
completion of the annual audit, review separately with each of management
and the independent auditors any significant difficulties encountered
during the course of the audit, including any restrictions on the
scope of
work or access to required information and any other matters related
to
the conduct of the audit that are to be communicated to the Committee
under generally accepted auditing
standards.
|
3. |
Review
any significant disagreement among management and the independent
auditors
in connection with the preparation of the financial
statements.
|
4. |
Review
with the independent auditors and management the extent to which
changes
or improvements in financial or accounting practices, as approved
by the
Committee, have been implemented. (This review should be conducted
at an
appropriate time subsequent to implementation of changes or improvements,
as decided by the Committee).
|
5. |
Report
annually to the Board of Directors, after the close of each fiscal
year
but prior to the Company’s annual meeting of stockholders, as well as on
any other appropriate occasion, any material issues that arise with
respect to the quality or integrity of the Company’s financial statements,
the Company’s compliance with legal and regulatory requirements, the
performance and independence of the independent auditors, the performance
of the internal audit function, if any, and whatever else the Committee
deems appropriate.
|
1. |
Establish,
review and update periodically a code of ethical conduct and ensure
that
management has established a system to enforce this
code.
|
2. |
Review
management’s monitoring of the Company’s compliance with the Company’s
code of ethical conduct, and ensure that management has the proper
review
system in place to ensure that the Company’s financial statements, reports
and other financial information disseminated to governmental organizations
and the public satisfy legal
requirements.
|
3. |
Establish
procedures for (a) the receipt, retention, and treatment of complaints
received by the Company regarding accounting, internal accounting
controls, and auditing matters, and (b) the confidential, anonymous
submission by employees of the Company of concerns regarding questionable
accounting or auditing matters.
|
4. |
Conduct
an appropriate review of all related party transactions for potential
conflict of interest situations in accordance with the Company’s
Management Policy on Related Person Transactions, and approve all
related
party transactions. For purposes hereof, the term “related party
transaction” shall refer to the transactions required to be disclosed
pursuant to the SEC’s Item 404 of Regulation
S-K.
|
5. |
Conduct
or authorize investigations into any matters within the Committee’s scope
of responsibilities and retain special independent legal, accounting
or
other advisors to advise the Committee as necessary to carry out
its
duties.
|
6. |
Review,
with Company outside counsel, any legal matter that could have a
significant impact on the Company’s financial
statements.
|
7. |
Perform
any other activities consistent with the Audit Committee Charter,
the
Company’s Bylaws and governing law, as the Committee or the Board of
Directors deems necessary or
appropriate.
|
1. |
Assessing
the overall compensation structure of the Company, selecting an
appropriate peer group, and periodically reviewing executive compensation
in relation to this peer group.
|
2. |
Reviewing
and approving corporate goals and objectives relating to the compensation
of the Chief Executive Officer, evaluating the performance of the
Chief
Executive Officer in light of the goals and objectives, and making
appropriate recommendations for improving performance. The Committee
shall
establish the compensation of the Chief Executive Officer based upon
such
evaluation. In
performing the foregoing functions, the Chairman of the Committee
may
solicit comments from the other members of the Board. Final
determinations regarding the performance and compensation of the
Chief
Executive Officer will be conducted in an executive session of the
Committee and be reported by the Chairman of the Committee to the
entire
Board during an executive session of the Board.
|
3. |
Reviewing
and approving compensation for all other executive officers of the
Company, evaluating the responsibilities and performance of other
executive officers and making appropriate recommendations for improving
performance.
|
4. |
Recommending
policies to the Board regarding minimum retention and ownership levels
of
Company common stock by executive officers of the Company.
|
5. |
Reviewing,
making recommendations to the Board and administering all executive
compensation programs, including, but not limited to, incentive and
equity-based plans of the Company. The Committee shall have and shall
exercise all the authority of the Board with respect to administering
such
plans, including approving amendments thereto.
|
6. |
Approving,
amending and terminating ERISA-governed employee benefit plans.
|
7. |
Reviewing
and discussing with the Company’s management the CD&A to be included
in the Company’s annual proxy statement, and determining whether to
recommend that the CD&A be included in the Company's proxy statement.
|
8. |
Producing
an annual report on executive compensation for inclusion in the Company’s
proxy statement in accordance with applicable rules and regulations
of the
SEC.
|
9. |
Overseeing
succession planning for senior management of the Company.
|
10. |
Conducting
an annual evaluation of the performance and effectiveness of the
Committee.
|
11. |
Reviewing
and reassessing the Committee's charter on an annual basis and submitting
any recommended changes to the Board for its
consideration.
|
12. |
Performing
such other functions and having such other powers as may be necessary
or
convenient in the efficient discharge of the
foregoing.
|
· |
may
obtain products or services of a nature, quantity or quality, or
on other
terms, that are not readily available from alternative sources;
or
|
· |
provides
products or services to a Related Person (as defined in Section B
below)
on an arm's length basis and on terms comparable to those provided
to
unrelated third parties or on terms comparable to those provided
to
employees generally.
|
· |
any
person who is, or at any time since the beginning of the Company's
last
fiscal year was, a director or executive officer of the Company or
a
nominee to become a director of the
Company;
|
· |
any
person who is the beneficial owner of more than 5% of any class of
the
Company's voting securities (a "Significant Holder");
and
|
· |
any
immediate family member (which means any child, stepchild, parent,
stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law) of any of the
foregoing
persons listed in 1 and 2 above and any person (other than a tenant
or
employee) sharing the household of any of the foregoing persons listed
in
1 and 2 above.
|
· |
position
as a director of another corporation or organization that is a party
to
the transaction;
|
· |
direct
or indirect ownership (combined with the interest of all Related
Persons),
in the aggregate, of less than a 10% equity interest in another person
(other than a partnership) which is a party to the transaction; or
|
· |
position
as a limited partner in a partnership in which all Related Persons
have an
interest, in the aggregate, of less than 10%, and the Related Person
is
not a general partner of and does not hold another position in the
partnership.
|
ARTICLE
1
|
PURPOSE
|
D-3
|
1.1
|
General
|
D-3
|
ARTICLE
2
|
DEFINITIONS
|
D-3
|
2.1
|
Definitions
|
D-3
|
ARTICLE
3
|
EFFECTIVE
TERM OF PLAN
|
D-8
|
3.1
|
Effective
Date
|
D-8
|
3.2
|
Term
of Plan
|
D-8
|
ARTICLE
4
|
ADMINISTRATION
|
D-9
|
4.1
|
Committee
|
D-9
|
4.2
|
Actions
and Interpretations by the Committee
|
D-9
|
4.3
|
Authority
of Committee
|
D-9
|
4.4
|
Delegation
|
D-10
|
4.5
|
Award
Certificates
|
D-10
|
ARTICLE
5
|
SHARES
SUBJECT TO THE PLAN
|
D-10
|
5.1
|
Number
of Shares
|
D-10
|
5.2
|
Share
Counting
|
D-10
|
5.3
|
Stock
Distributed
|
D-11
|
5.4
|
Limitation
on Awards
|
D-11
|
5.5
|
Limitation
on Three-Year Average Annual Burn Rate
|
D-11
|
ARTICLE
6
|
ELIGIBILITY
|
D-11
|
6.1
|
General
|
D-11
|
ARTICLE
7
|
STOCK
OPTIONS
|
D-12
|
7.1
|
General
|
D-12
|
7.2
|
Incentive
Stock Options
|
D-12
|
ARTICLE
8
|
STOCK
APPRECIATION RIGHTS
|
D-12
|
8.1
|
Grant
of Stock Appreciation Rights
|
D-12
|
ARTICLE
9
|
RESTRICTED
STOCK, RESTRICTED STOCK UNITS AND DEFERRED STOCK UNITS
|
D-13
|
9.1
|
Grant
of Restricted Stock, Restricted Stock Units and Deferred Stock
Units
|
D-13
|
9.2
|
Issuance
and Restrictions
|
D-13
|
9.3
|
Forfeiture
|
D-13
|
9.4
|
Delivery
of Restricted Stock
|
D-13
|
ARTICLE
10
|
PERFORMANCE
AWARDS
|
D-14
|
10.1
|
Grant
of Performance Awards
|
D-14
|
10.2
|
Performance
Goals
|
D-14
|
ARTICLE
11
|
QUALIFIED
STOCK-BASED AWARDS
|
D-14
|
11.1
|
Options
and Stock Appreciation Rights
|
D-14
|
11.2
|
Other
Awards
|
D-14
|
11.3
|
Performance
Goals
|
D-15
|
11.4
|
Inclusions
and Exclusions from Performance Criteria
|
D-15
|
11.5
|
Certification
of Performance Goals
|
D-16
|
11.6
|
Award
Limits
|
D-16
|
ARTICLE
12
|
DIVIDEND
EQUIVALENTS
|
D-16
|
12.1
|
Grant
of Dividend Equivalents
|
D-16
|
ARTICLE
13
|
STOCK
OR OTHER STOCK-BASED AWARDS
|
D-16
|
13.1
|
Grant
of Stock or Other Stock-Based Awards
|
D-16
|
ARTICLE
14
|
PROVISIONS
APPLICABLE TO AWARDS
|
D-16
|
14.1
|
Term
of Awards
|
D-16
|
14.2
|
Form
of Payment of Awards
|
D-16
|
14.3
|
Limits
on Transfer
|
D-17
|
14.4
|
Beneficiaries
|
D-17
|
14.5
|
Stock
Trading Restrictions
|
D-17
|
14.6
|
Acceleration
upon a Change in Control
|
D-17
|
14.7
|
Acceleration
for Any Other Reason
|
D-18
|
14.8
|
Forfeiture
Events
|
D-18
|
14.9
|
Substitute
Awards
|
D-19
|
ARTICLE
15
|
CHANGES
IN CAPITAL STRUCTURE
|
D-19
|
15.1
|
Mandatory
Adjustments
|
D-19
|
15.2
|
Discretionary
Adjustments
|
D-19
|
15.3
|
General
|
D-19
|
ARTICLE
16
|
AMENDMENT,
MODIFICATION AND TERMINATION
|
D-19
|
16.1
|
Amendment,
Modification and Termination
|
D-19
|
16.2
|
Awards
Previously Granted
|
D-20
|
16.3
|
Compliance
Amendments
|
D-20
|
ARTICLE
17
|
GENERAL
PROVISIONS
|
D-20
|
17.1
|
Rights
of Participants
|
D-20
|
17.2
|
Withholding
|
D-21
|
17.3
|
Special
Provisions Related to Section 409A of the Code
|
D-21
|
17.4
|
Unfunded
Status of Awards
|
D-22
|
17.5
|
Relationship
to Other Benefits
|
D-22
|
17.6
|
Expenses
|
D-22
|
17.7
|
Titles
and Headings
|
D-22
|
17.8
|
Gender
and Number
|
D-22
|
17.9
|
Fractional
Shares
|
D-22
|
17.10
|
Government
and Other Regulations
|
D-22
|
17.11
|
Governing
Law
|
D-22
|
17.12
|
Additional
Provisions
|
D-23
|
17.13
|
No
Limitations on Rights of Company
|
D-23
|
17.14
|
Indemnification
|
D-23
|
- |
Revenue
|
- |
Sales
|
- |
Profit
(net profit, gross profit, operating profit, economic profit, profit
margins or other corporate profit
measures)
|
- |
Earnings
(EBIT, EBITDA, earnings per share, or other corporate earnings
measures)
|
- |
Net
income (before or after taxes, operating income or other income
measures)
|
- |
Cash
(cash flow, cash generation, working capital, or other cash
measures)
|
- |
Stock
price or performance
|
- |
Total
stockholder return (stock price appreciation plus reinvested
dividends)
|
- |
Return
on equity
|
- |
Return
on assets
|
- |
Return
on investment
|
- |
Market
share
|
- |
Improvements
in capital structure
|
- |
Expenses
(expense management, expense ratio, expense efficiency ratios or
other
expense measures)
|
- |
Business
expansion or consolidation (acquisitions, divestitures, in-licensing,
or
product acquisitions)
|
- |
Market
capitalization
|
- |
Clinical
and regulatory milestones
|
- |
Corporate
financing activities
|
- |
Supply,
production, and manufacturing milestones
|
- |
Corporate
partnerships or strategic alliances
|