Filed by the Registrant:
|
ý
|
Filed
by a Party other than the Registrant:
|
¨
|
Check the appropriate
box:
|
|
ý
|
Preliminary
Proxy
Statement
|
¨
|
Confidential,
For Use of the
Commission Only (As Permitted by Rule 14a-6(e)(2))
|
¨
|
Definitive
Proxy
Statement
|
¨
|
Definitive
Additional
Materials
|
¨
|
Soliciting
Material Pursuant to ss.
240.14a-12
|
Payment of Filing Fee (Check the appropriate
box):
|
ý
|
No
fee
required.
|
¨
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
(1)
|
Title of each class of securities to which
transaction applies:
|
(2)
|
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)
|
Total fee paid:
|
¨
|
Fee
paid previously with preliminary
materials.
|
¨
|
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)
|
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/
Beth F. Levine
|
|||
Beth
F. Levine
Corporate
Secretary
|
Proxy
Statement
|
|
|
Questions
and Answers
|
1
|
|
Why
did I receive a “Notice of Internet Availability of Proxy
Materials?”
|
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?
|
2
|
|
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 amend our Certificate of
Incorporation?
|
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
|
8
|
|
Report
of the Audit Committee
|
9
|
|
Our
Executive Officers
|
10
|
|
Executive
Officers
|
10
|
|
Employment
Agreements
|
10
|
|
Compensation
Discussion and Analysis
|
12
|
|
Executive
Compensation
|
18
|
|
Report
of the Compensation Committee
|
30
|
|
Compensation
Committee Interlocks and Insider Participation
|
31
|
|
Section
16(a) Beneficial Ownership Reporting Compliance
|
32
|
|
Related-Person
Transactions
|
33
|
|
Stock
Ownership of Our Directors, Executive Officers, and 5% Beneficial
Owners
|
34
|
|
Proposal
One: Election of Directors; Nominees
|
36
|
|
Proposal
Two: Amendment to our Certificate of Incorporation
|
37
|
|
Additional
Information
|
38
|
|
Householding
of Annual Meeting Materials
|
38
|
|
Stockholder
Proposals for Our 2009 Annual Meeting
|
38
|
|
Other
Matters
|
38
|
|
Solicitation
of Proxies
|
38
|
|
Incorporation
of Information by Reference
|
38
|
|
Exhibit
A - Amendment to Certificate of Incorporation
|
A-1
|
A. |
In
accordance with new Securities and Exchange Commission rules, instead
of
mailing a printed copy of our proxy
materials, we may now send a “Notice of Internet Availability of Proxy
Materials” to stockholders. All stockholders
will have the ability to access the proxy materials on a website
referred
to in the notice or to request
a printed set of these materials at no charge. You will not receive
a
printed copy of the proxy materials unless
you specifically request one. Instead, the notice instructs you as
to how
you may access and review all of the
important information contained in the proxy materials via the Internet
and submit your vote via the Internet.
|
A. |
At
the Annual Meeting, our stockholders will act upon the matters outlined
in
the Notice of 2008 Annual Meeting of Stockholders accompanying this
Proxy
Statement, including (i) the election of seven directors to our Board
of
Directors for a term of one year, (ii) the approval of an amendment
to our
Certificate of Incorporation, and (iii) the transaction of any other
business that may properly come before the 2008 Annual Meeting or
any
adjournment thereof.
|
A. |
The
record holders of our common stock at the close of business on the
record
date, April 21, 2008, may vote at the Annual Meeting. Each share
of our
common stock is entitled to one vote. There were [43,696,153] 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 6, 2008, 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 via Internet as directed
in
our “Notice of Internet Availability of Proxy Materials.”
|
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 Beth F. Levine, our Senior
Vice
President, General Counsel, Chief Compliance Officer and Corporate
Secretary 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.
If
you complete and submit your proxy but do not otherwise provide
instructions on how to vote your shares, your shares will be voted
“FOR”
the individuals nominated to serve as members of our Board of Directors
and “FOR” the proposed amendment to our Certificate of
Incorporation.
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.
|
· |
delivering
written notice to our Corporate Secretary, Beth F. Levine, at our
address
above;
|
· |
submitting
a later dated proxy card or voting again via the Internet as described
in
the “Notice of Internet Availability of Proxy Materials”;
or
|
· |
attending
the 2008 Annual Meeting and voting in
person.
|
A. |
Before
the Annual Meeting, our Board of Directors will appoint one or more
inspectors of election for the meeting. The inspector(s) will determine
the number of shares represented at the meeting, the existence of
a quorum
and the validity and effect of proxies. The inspector(s) 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 our common stock outstanding is
required
to approve the amendment to our
Certificate of Incorporation to permit our Board of Directors to
issue
series of preferred stock. The effect of an
abstention or a broker non-vote is the same as that of a vote against
the
proposal.
|
A. |
As
of April 17, 2008, our directors and executive officers owned, or
have the
right to acquire, approximately 11.7% of our outstanding common stock.
See
the discussion under the heading “Stock Ownership of Our Directors,
Executive Officers, and 5% Beneficial Owners” on page 34 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 not approved the retention
of KPMG
LLP to audit our financial statements for the year ending December
31,
2008, since the terms of their engagement have yet to be provided
and
reviewed. As such, our Board of Directors is not asking the stockholders
to ratify KPMG LLP as our independent registered public accounting
firm.
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,
2007, WITH THE SECURITIES AND EXCHANGE COMMISSION, OR THE SEC. THE
ANNUAL
REPORT ON FORM 10-K IS ALSO INCLUDED IN THE 2007 ANNUAL REPORT TO
STOCKHOLDERS. 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 CORPORATE SECRETARY, BETH F. LEVINE, 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
|
42
|
Chairman
of the Board;
Chief
Executive Officer
|
2002
|
|||
Kevin
J. Cameron.
|
39
|
Director
|
2007
|
|||
Wyche
Fowler, Jr.
|
67
|
Director
|
2006
|
|||
Malcolm
Hoenlein
|
64
|
Director
|
2001
|
|||
Jack
Kaye
|
64
|
Director
|
2006
|
|||
Eric
Rose, M.D.
|
56
|
Director
|
2004
|
|||
Michael
P. Tarnok.
|
53
|
Director
|
2007
|
·
|
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.
|
· |
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.
|
By
the Audit Committee of the Board of Directors
|
|||
Jack
Kaye, Chairperson
Kevin
J. Cameron
Michael
Tarnok
|
Name
|
Age
|
Position
|
||
Michael
S. Weiss
|
42
|
Chairman
and Chief Executive Officer
|
||
Beth
F. Levine.
|
44
|
Senior
Vice President, General Counsel, Chief Compliance Officer and Corporate
Secretary
|
·
|
Michael
S. Weiss, Chairman and Chief Executive
Officer;
|
·
|
I.
Craig Henderson, MD, Former
President;
|
·
|
Beth
Levine, Senior Vice President, General Counsel, Chief Compliance
Officer
and Corporate Secretary;
|
·
|
Mark
Stier, Former Vice President and Chief Accounting Officer;
and
|
·
|
Ronald
C. Renaud, Jr., Former Senior Vice President and Chief Financial
Officer.
|
·
|
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.
|
Acadia
|
Geron
|
|
Albany
Molecular
|
GTX
|
|
Arena
|
Lexicon
|
|
Array
|
Momenta
|
|
Aspen
|
Neogen
|
|
Caraco
Pharmaceuticals
|
NxStage
|
|
Cypress
|
Pain
Therapeutics
|
|
CytRx
|
Sequenom
|
|
Durect
|
Third
Wave Technologies
|
|
Enzon
|
Xoma
Limited
|
1) |
management
changes that made it impossible to gather consistent
data;
|
2) |
the
peer company was not public either for the full year of 2006 or at
all
during the year; or
|
3) |
the
peer company did not have a proxy statement
available.
|
NEO
|
|
Base
Salary as Compared to 2007 Peer Group
|
Michael
S. Weiss, Chief Executive Officer
|
|
Below
first quartile
|
I.
Craig Henderson, Former President
|
|
Between
median and third quartile
|
Beth
F. Levine, General Counsel
|
|
Above
third quartile
|
Mark
Stier, Former Chief Accounting Officer
|
|
Above
third quartile
|
Ronald
C. Renaud, Jr., Former Chief Financial Officer (resigned June
2007)
|
|
Above
third quartile
|
·
|
Chief
Executive Officer - 100% of Base
Salary
|
·
|
Former
President - 50% of Base Salary
|
·
|
General
Counsel - 50% of Base Salary
|
·
|
Former
Chief Accounting Officer - 50% of Base
Salary
|
·
|
Former
Chief Financial Officer - 50% of Base Salary
|
·
|
completion
of treatment of all the patients required for the Sulonex Phase 3
clinical
trial;
|
·
|
substantial
progress in scaling up the manufacturing process to commercial scale
for
Sulonex;
|
·
|
advancement
of the clinical development of KRX-0401 (perifosine);
and
|
·
|
JT/Torii
license agreement.
|
Name
and Principal Position
|
Year
|
Salary
($)
|
Bonus
($)(1)
|
Stock
Awards
($)(2)
|
Option
Awards
($)(2)
|
Non-Equity
Incentive Plan Compensation ($)
|
All
Other Compensation ($)
|
Total
($)
|
|||||||||||||||||
Michael
S. Weiss
|
2007
|
390,000
|
—
|
—
|
5,061,674
|
206,310
|
—
|
5,657,984
|
|||||||||||||||||
Chairman
and Chief Executive Officer
|
2006
|
375,000
|
—
|
—
|
6,100,980(2
|
)
|
2,292,500(3
|
)
|
4,824(4
|
)
|
8,773,304
|
||||||||||||||
|
|||||||||||||||||||||||||
I.
Craig Henderson
|
2007
|
315,000
|
—
|
869,446
|
1,377,837
|
83,318
|
—
|
2,645,601
|
|||||||||||||||||
Former President(5) |
2006
|
300,000
|
75,000
|
—
|
1,571,326(2
|
)
|
117,000
|
—
|
2,063,326
|
||||||||||||||||
|
|||||||||||||||||||||||||
Beth
F. Levine
Senior
Vice President, General Counsel, Chief Compliance Officer and Corporate
Secretary(6)
|
2007
|
206,923
|
65,000
|
27,103
|
176,113
|
79,350
|
—
|
554,489
|
|||||||||||||||||
Mark
Stier
Former
Vice President, Chief Accounting Officer and Treasurer(7)
|
2007
|
216,827
|
—
|
—
|
134,772
|
72,738
|
—
|
424,337
|
|||||||||||||||||
Ronald
C. Renaud, Jr.
|
2007
|
139,883
|
—
|
63,750
|
229,553
|
—
|
—
|
433,186
|
|||||||||||||||||
Former
Senior Vice President and Chief Financial Officer(8)
|
2006
|
241,228
|
150,000
|
191,250
|
892,652
|
107,250
|
—
|
1,582,380
|
(1)
|
Reflects
the value of the special bonuses for fiscal year 2007 and
2006.
|
(2)
|
Reflects
the amount recognized by the Company in 2007 and 2006 for financial
statement reporting 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 2007 and 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 9 to our consolidated financial statements for 2007,
which are
included in our Annual Report on Form 10-K for the fiscal year 2007,
and
in 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,
each
filed with SEC.
|
(3)
|
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)
|
Dr.
Henderson’s employment was terminated effective as of April 15, 2008.
|
(6)
|
Ms.
Levine began employment as our Senior Vice President, General Counsel,
Chief Compliance Officer and Secretary on April 18,
2007.
|
(7)
|
Mr.
Stier began employment as our Vice President, Chief Accounting Officer
and
Treasurer on March 19, 2007. Mr. Stier resigned from the Company
effective
June 30, 2008.
|
(8)
|
Mr.
Renaud began employment as our Senior Vice President and Chief Financial
Officer on February 14, 2006. Mr. Renaud resigned from the Company
effective June 27, 2007.
|
All
|
|
|
|
|
|
|
|
|||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Other
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
All
Other
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
Option
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Number
|
|
Awards:
|
|
Exercise
|
|
Grant
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
of
|
|
Number
of
|
|
or
Base
|
|
Date
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Shares
|
|
Securities
|
|
Price
of
|
|
Fair
|
|
|||||||||
|
|
|
|
Committee
|
|
Estimated
Future Payouts
|
|
of
Stock
|
|
Underlying
|
|
Option
|
|
Value
of
|
|
|||||||||||||
|
|
Grant
|
|
Approval
|
|
Under
Non-Equity Incentive
|
|
or
Units
|
|
Options
|
|
Awards
|
|
Awards
|
|
|||||||||||||
Name
|
|
Date
|
|
Date
|
|
Plan
Awards (1)
|
|
(#)
|
(#)
|
($/sh)
|
($)(2)
|
|||||||||||||||||
Threshold
|
Target
|
Maximum
|
||||||||||||||||||||||||||
($)
|
($)
|
($)
|
||||||||||||||||||||||||||
Mr.
Weiss
|
12/30/07
|
(3)
|
12/30/07
|
—
|
—
|
—
|
—
|
198,375
|
8.56
|
974,537
|
||||||||||||||||||
|
—
|
—
|
—
|
390,000
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||
Dr.
Henderson
|
4/25/07
|
(4)
|
4/25/07
|
—
|
—
|
—
|
50,000
|
—
|
—
|
551,000
|
||||||||||||||||||
6/20/07
|
(5) |
4/25/07
|
—
|
—
|
—
|
100,000
|
—
|
—
|
1,017,000
|
|||||||||||||||||||
12/30/07
|
(3) |
12/30/07
|
—
|
—
|
—
|
—
|
33,063
|
8.56
|
162,425
|
|||||||||||||||||||
—
|
—
|
—
|
157,500
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||
Ms.
Levine
|
4/25/07
|
(6)
|
4/25/07
|
—
|
—
|
—
|
—
|
150,000
|
11.02
|
1,031,010
|
||||||||||||||||||
4/25/07
|
(7) |
4/25/07
|
—
|
—
|
—
|
15,000
|
—
|
—
|
165,300
|
|||||||||||||||||||
12/30/07
|
(3) |
12/30/07
|
—
|
—
|
—
|
—
|
19,838
|
8.56
|
97,456
|
|||||||||||||||||||
—
|
—
|
—
|
150,000
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||
Mr.
Stier
|
3/23/07
|
(8)
|
3/23/07
|
—
|
—
|
—
|
—
|
100,000
|
11.11
|
696,490
|
||||||||||||||||||
12/30/07
|
(3) |
12/30/07
|
—
|
—
|
—
|
—
|
13,225
|
8.56
|
64,969
|
|||||||||||||||||||
—
|
—
|
—
|
137,500
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||
Mr.
Renaud
|
—
|
—
|
—
|
143,000
|
—
|
—
|
—
|
—
|
—
|
(1) |
Represents
target payout values for 2007 cash performance awards. Pursuant to
his or
her 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%; Ms Levine, 50%; Mr. Stier,
50%; and Mr. Renaud, 50%. In each case, the actual amount earned by
each NEO in 2007 is reported under the Non-Equity Incentive Plan
Compensation column in the Summary Compensation Table on page 18 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 9 to our consolidated financial
statements for 2007, which are included in our Annual Report on Form
10-K
for the fiscal year 2007, filed with the
SEC.
|
(3) |
Award
of time-vesting stock options under the 2007 Incentive Plan. The
Compensation Committee approved and granted these stock option awards
on
December 30, 2007. The grant date, December 30, 2007 was a Sunday
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 28,
2007).
|
(4) |
Award
under the 2004 Long-Term Incentive Plan of 50,000 immediately-vested
restricted shares. The Compensation Committee approved and granted
this
stock award on April 25, 2007.
|
(5) |
Award
under the 2004 Long-Term Incentive Plan of 100,000 time-vesting restricted
shares. The Compensation Committee approved this stock award on April
25,
2007, to be granted upon the approval of a new long-term incentive
plan
which occurred at the annual meeting held on June 20,
2007.
|
(6) |
Award
of time-vesting stock options under the 2007 General Counsel Incentive
Stock Option Plan. The Compensation Committee approved and granted
these
stock option awards on April 25,
2007.
|
(7) |
Award
under the 2004 Long-Term Incentive Plan of 15,000 time-vesting restricted
shares. The Compensation Committee approved and granted this stock
award
on April 25, 2007.
|
(8) |
Award
of time-vesting stock options under the 2007 Chief Accounting Officer
Inducement Stock Option Plan. The Compensation Committee approved
and
granted these stock option awards on March 23,
2007.
|
Option
Awards
|
Stock
Awards
|
||||||||||||||||||
Number
of
|
Number
of
|
Number
of Shares or
|
Market
Value
|
||||||||||||||||
Securities
|
Securities
|
Units
of
|
of
Shares or
|
||||||||||||||||
Underlying
Unexercised
|
Underlying
Unexercised
|
Option
|
Stock
That Have
|
Units
of Stock
|
|||||||||||||||
Options
|
Options
|
Exercise
|
Option
|
Not
|
That
Have
|
||||||||||||||
(#)
|
(#)
|
Price
|
Expiration
|
Vested
|
Not
Vested
|
||||||||||||||
Name
|
Exercisable
|
Unexercisable
|
($)
|
Date
|
(#)
|
($)
|
|||||||||||||
Mr.
Weiss
|
3,600,000
|
(1)
|
—
|
1.30
|
12/23/12
|
||||||||||||||
343,750
|
(2)
|
156,250
|
(2)
|
11.22
|
01/03/15
|
||||||||||||||
875,000
|
(3)
|
625,000
|
(3)
|
14.64
|
01/02/16
|
||||||||||||||
25,000
|
(4)
|
75,000
|
(4)
|
13.30
|
12/31/16
|
||||||||||||||
—
|
198,375
|
(5)
|
8.56
|
12/30/17
|
|||||||||||||||
Dr.
Henderson
|
500,000
|
(6)
|
500,000
|
(6)
|
9.25
|
02/05/14
|
|||||||||||||
42,969
|
(7)
|
19,531
|
(7)
|
11.22
|
01/03/15
|
||||||||||||||
27,344
|
(8)
|
35,156
|
(8)
|
14.64
|
01/02/16
|
||||||||||||||
15,000
|
(9)
|
45,000
|
(9)
|
13.30
|
12/31/16
|
||||||||||||||
100,000
|
(15)
|
840,000
|
(17)
|
||||||||||||||||
—
|
33,063
|
(10)
|
8.56
|
12/30/17
|
|||||||||||||||
Ms.
Levine
|
—
|
150,000
|
(11)
|
11.02
|
4/25/17
|
||||||||||||||
15,000
|
(16)
|
126,000
|
(17)
|
||||||||||||||||
|
—
|
19,838
|
(12)
|
8.56
|
12/30/17
|
||||||||||||||
Mr.
Stier
|
—
|
100,000
|
(13)
|
11.11
|
3/23/17
|
||||||||||||||
—
|
13,225
|
(14)
|
8.56
|
12/30/17
|
(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 vested
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 vested 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 December 30, 2007, under the
2007
Incentive Plan. The stock options vest as to one-quarter of the options
on
December 30, 2008 and the remaining options vest in equal installments
on
a quarterly basis through December 30,
2011.
|
(6) |
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 vested.
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 166,666, 166,667
and
166,666 options upon the earlier achievement of certain performance
milestones.
|
(7) |
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.
|
(8) |
Stock
options awarded to the executive on January 2, 2006, under the 2004
Long-Term Incentive Plan. The stock options vested 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.
|
(9) |
Stock
options awarded to the executive on December 31, 2006, under the
2004
Long-Term Incentive Plan. The stock options vested 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.
|
(10) |
Stock
options awarded to the executive on December 30, 2007, under the
2007
Incentive Plan. The stock options vest as to one-quarter of the options
on
December 30, 2008 and the remaining options vest in equal installments
on
a quarterly basis through December 30,
2011.
|
(11) |
Stock
options awarded to the executive on April 25, 2007, under the 2007
General
Counsel Incentive Stock Option Plan. The stock options vest as to
37,500
options on April 25, 2008, and as to 9,375 options every three months
after April 25, 2008 until April 25,
2011.
|
(12) |
Stock
options awarded to the executive on December 30, 2007, under the
2007
Incentive Plan. The stock options vest as to one-quarter of the options
on
December 30, 2008 and the remaining options vest in equal installments
on
a quarterly basis through December 30,
2011.
|
(13) |
Stock
options awarded to the executive on March 23, 2007, under the 2007
Chief
Accounting Officer Inducement Stock Option Plan. The stock options
vest as
to 25,000 options on March 23, 2008, and as to 6,250 options every
three
months after March 23, 2008 until March 23,
2011.
|
(14) |
Stock
options awarded to the executive on December 30, 2007, under the
2007
Incentive Plan. The stock options vest as to one-quarter of the options
on
December 30, 2008 and the remaining options vest in equal installments
on
a quarterly basis through December 30,
2011.
|
(15) |
Restricted
stock granted to the executive on June 20, 2007 under the 2004 Long-Term
Incentive Plan, which vest as to 50,000 shares on April 25, 2008
and
50,000 shares on April 25, 2009. The Compensation Committee approved
this
stock award on April 25, 2007, to be granted upon the approval of
a new
long-term incentive plan which occurred at the annual meeting held
on June
20, 2007.
|
(16) |
Restricted
stock granted to the executive on April 25, 2007 under the 2004 Long-Term
Incentive Plan, which vest as to 5,000 shares on April 25, 2009,
5,000
shares on April 25, 2010, and 5,000 shares on April 25,
2011.
|
(17) |
Reflects
the value as calculated using the closing market price of our common
stock
as of the last trading day in 2007, December 31, 2007
($8.40).
|
Option
Awards
|
Stock
Awards
|
||||||||||||
Name
|
Number
of Shares Acquired on Exercise
(#)
|
Value
Realized
on Exercise
($)(1)
|
Number
of Shares Acquired on Vesting
(#)
|
Value
Realized
on Vesting
($)
|
|||||||||
Mr.
Weiss
|
—
|
—
|
|||||||||||
Dr.
Henderson
|
—
|
—
|
50,000
|
551,000
|
|||||||||
Ms.
Levine
|
—
|
—
|
|
||||||||||
Mr.
Stier
|
—
|
—
|
|||||||||||
Mr.
Renaud
|
—
|
—
|
16,666
|
196,492
|
Type
of Payment
|
Change
of Control Event or Reorganization Event
|
Termination
without Cause or Resignation For Good Reason
|
Termination
in Anticipation of or Within 12 Months Following a Change of Control
or
Reorganization Event
|
Death
or Disability
|
|||||||||
($)
|
($)
|
($)
|
($)
|
||||||||||
Cash
Severance
|
—
|
596,310
(1)
|
|
1,560,000
(1)
|
|
97,500
(2)
|
|
||||||
Value
of Accelerated Stock Options (3)
|
0
|
0
|
0
|
0
|
|||||||||
Total
|
0
|
596,310
|
1,560,000
|
97,500
|
(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 unvested 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 or his resignation for good reason, termination
of
his employment 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 $8.40 closing price as of December 31, 2007,
the last
trading day of the most recently completed fiscal year, less the
exercise
price of the stock option. For
purposes of this calculation, outstanding options having an exercise
price
equal to or more than the closing price of our common stock on such
date
have a value of $0. Such
stock options also will remain exercisable for two years from the
date of
his termination or the expiration of the original term of the stock
options, whichever occurs first.
|
Type
of Payment
|
Termination
without Just Cause or Resignation For Good Reason
|
Termination
in Anticipation of or Within 12 Months Following a Qualified Change
of
Control
|
Death
or Disability
|
|||||||
($)
|
($)
|
($)
|
||||||||
Cash
Severance
|
398,318
(1)
|
|
713,318
(1)
|
|
83,318
(2)
|
|
||||
Value
of Accelerated Stock Options and Restricted stock (3)
|
420,000
(4)
|
|
840,000
(4)
|
|
—
|
|||||
Total
|
818,318
|
1,553,318
|
83,318
|
(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 2007 (which would have been unpaid
as of 12/31/07).
|
(3)
|
Represents
the fair market value of shares underlying outstanding stock options
and
restricted shares based on $8.40
closing price as of December 31, 2007,
the last trading day of the most recently completed fiscal year,
less the
exercise price of the stock option. For purposes of this calculation,
outstanding options having an exercise price equal to or more than
the
closing price of our common stock on such date have a value of $0.
|
(4) |
Pursuant
to Dr. Henderson’s employment agreement, upon his termination of
employment by the Company without just cause or by Dr. Henderson for
good reason, he will receive one additional year of vesting of all
outstanding stock options and restricted shares. If such termination
occurs in anticipation of a “qualified” change in control (as defined in
his employment agreement) or within 12 months thereafter, all of
his
outstanding stock options and restricted shares will become fully
vested.
Stock options granted to Dr. Henderson after the effective date of
his employment agreement also will remain exercisable for two years
from
the date of his termination or the expiration of the original term
of the
stock options, whichever occurs
first.
|
Type
of Payment
|
Termination
without Just Cause or Resignation For Good Reason Prior to April
18,
2008
|
Termination
without Just Cause or Resignation For Good Reason After April 18,
2008
|
Change
of Control Absent a Termination of Employment
|
Termination
in Anticipation of or Within 12 Months Following a Qualified Change
of
Control
|
Death
or Disability
|
|||||||||||
($)
|
($)
|
($)
|
($)
|
($)
|
||||||||||||
Cash
Severance
|
90,962(1
|
)
|
—
|
—
|
379,350(1
|
)
|
75,000(2
|
)
|
||||||||
Value
of Accelerated Stock Options and Restricted Stock (3)
|
126,000(4
|
)
|
126,000(4
|
)
|
126,000(4
|
)
|
126,000(4
|
)
|
—
|
|||||||
Total
|
216,962
|
126,000
|
126,000
|
505,350
|
75,000
|
(1) |
Ms.
Levine’s employment
agreement provides that if her 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) in the first twelve months of
employment (by April 18, 2008), she will receive her full salary
and
reimbursement of the cost of COBRA to maintain health benefits (excluding
bonus) until the first anniversary of her employment (April 18, 2008),
as
a lump-sum payment within 30 days of such termination. If her employment
is terminated by the Company without just cause or by the executive
for
good reason in anticipation of or within 12 months following a “qualified”
change in control (as defined in the employment agreement), she will
receive a lump-sum payment equal to: (i) one (1) year's base salary;
plus
(ii) any earned and unpaid bonus as of the date of termination, payable
within 30-days of such termination.
|
(2) |
Ms.
Levine’s employment agreement provides that if her employment is
terminated by reason of her death or disability, she or her estate
will
continue to receive her base salary for three months.
|
(3) |
Represents
the fair market value of shares underlying outstanding stock options
and
restricted shares based on $8.40
closing price as of December 31, 2007,
the last trading day of the most recently completed fiscal year,
less the
exercise price of the stock option. For purposes of this calculation,
outstanding options having an exercise price equal to or more than
the
closing price of our common stock on such date have a value of
$0.
|
(4) |
Pursuant
to Ms. Levine’s employment agreement, upon her termination of employment
by the Company without just cause or by Ms. Levine for good reason,
or in
the event of a change in control, all of Ms. Levine’s stock options and
restricted shares shall vest. Stock options granted to Ms. Levine
after
the effective date of her employment agreement also will remain
exercisable for two years from the date of her termination or the
expiration of the original term of the stock options, whichever occurs
first.
|
Type
of Payment
|
Termination
without Just Cause or Resignation For Good Reason Prior to March
19,
2008
|
Termination
in Event of a Change of Control
|
Termination
in Connection with a Qualified Change of Control
|
|||||||
($)
|
($)
|
($)
|
||||||||
Cash
Severance
|
60,465
(1)
|
|
—
|
275,000
(1)
|
|
|||||
Value
of Accelerated Stock Options(2)
|
—
|
0
(3)
|
|
0
(3)
|
|
|||||
Total
|
60,465
|
0
|
275,000
|
(1) |
Mr.
Stier’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) in the first twelve months of
employment (by March 19, 2008), he will receive his full salary and
benefits (excluding bonus) until the first anniversary of his employment
(March 19, 2008). If such termination occurs in connection with a
“qualified” change in control (as defined in the employment agreement), he
will receive a lump-sum payment equal to one (1) year's base salary.
|
(2) |
Represents
the fair market value of shares underlying outstanding stock options
based
on $8.40
closing price as of December 31, 2007,
the last trading day of the most recently completed fiscal year,
less the
exercise price of the stock option. For purposes of this calculation,
outstanding options having an exercise price equal to or more than
the
closing price of our common stock on such date have a value of
$0.
|
(3) |
Pursuant
to Mr. Stier’s employment agreement, upon his termination of employment by
the Company in the event of a change in control, all of Mr. Stier’s stock
options shall vest and will remain exercisable for two years from
the date
of his termination or the expiration of the original term of the
stock
options, whichever occurs first.
|
Name
|
Fees
Earned or Paid in Cash ($)
|
Option
Awards ($)(7)
|
Total
($)
|
|||||||
Kevin
Cameron
|
32,500
(1)
|
|
103,399
|
135,899
|
||||||
Wyche
Fowler
|
26,250
(2)
|
|
138,546
|
164,796
|
||||||
Malcolm
Hoenlein
|
26,250
(3)
|
|
76,205
|
102,455
|
||||||
Jack
Kaye
|
35,000
(4)
|
|
148,767
|
183,767
|
||||||
Eric
Rose
|
24,167
(5)
|
|
269,316
|
293,483
|
||||||
Michael
Tarnok
|
14,583
(6)
|
|
25,611
|
40,194
|
(1) |
In
April 2007, Kevin Cameron was appointed to the Board of Directors
by
unanimous vote of the directors. Represents the retainer paid in
2007 for
Board of Directors services for the period from May 2007 to February
2008.
|
(2) |
Represents
the retainer paid in 2007 for Board of Directors services for the
period
from June 2007 to February 2008. Senator Fowler’s retainer payment for
services from January 2007 to May 2007, amounting to $14,583, was
paid in
2006 and reported in the Company’s 2007 proxy
statement.
|
(3) |
Represents
the retainer paid in 2007 for Board of Directors services for the
period
from June 2007 to February 2008. Mr. Hoenlein’s retainer payment for
services from January 2007 to May 2007, amounting to $16,667, was
paid in
2006 and reported in the Company’s 2007 proxy
statement.
|
(4) |
Represents
a $30,000 retainer paid in 2007 for Board of Directors services for
the
period from June 2007 to November 2007, and a $5,000 retainer paid
in 2008
for Board of Director services in December 2007. Mr. Kaye’s retainer
payment for services from October 2006 to May 2007, amounting to
$40,000,
of which $25,000 relates to January 2007 to May 2007, was paid in
2007 and
reported in the Company’s 2007 proxy
statement.
|
(5) |
Represents
the retainer paid in 2007 for Board of Directors services for the
period
from June 2007 to February 2008. Dr. Rose’s retainer payment for services
from January 2007 to May 2007, amounting to $14,583, was paid in
2006 and
reported in the Company’s 2007 proxy
statement.
|
(6) |
In
September 2007, Michael Tarnok was appointed to the Board of Directors
by
unanimous vote of the directors. Represents the retainer paid in
2007 for
Board of Directors services for the period from October 2007 to February
2008.
|
(7) |
Represents
the
amount recognized by the Company in 2007 for financial accounting
purposes
relating to option awards, disregarding for this purpose the estimate
of
forfeitures related to service-based vesting conditions. The fair
values
of these awards and the amounts expensed in 2007 were determined
in
accordance with FAS 123R. The assumptions used in determining these
amounts are set forth in the Note 9 to our consolidated financial
statements, which are included in our Annual Report on Form 10-K
for
fiscal year 2007, filed with the
SEC.
|
Full
Grant
|
||||||||||
Date
Fair
|
||||||||||
Grant
|
Stock
|
Value
of
|
||||||||
Name
|
Date
|
Options
(#)
|
Award
($)
|
|||||||
Kevin
Cameron
|
4/25/07
|
50,000
|
313,290
|
|||||||
6/21/07
|
10,000
|
42,018
|
||||||||
Wyche
Fowler
|
6/21/07
|
10,000
|
42,018
|
|||||||
Malcolm
Hoenlein
|
6/21/07
|
10,000
|
42,018
|
|||||||
Jack
Kaye
|
6/21/07
|
10,000
|
42,018
|
|||||||
Eric
Rose
|
6/21/07
|
30,000
|
172,998
|
|||||||
6/21/07
|
10,000
|
42,018
|
||||||||
Michael
Tarnok
|
9/20/07
|
50,000
|
276,560
|
Name
|
Stock
Options (#)
|
|||
Kevin
Cameron
|
60,000
|
|||
Wyche
Fowler
|
60,000
|
|||
Malcolm
Hoenlein
|
110,000
|
|||
Jack
Kaye
|
60,000
|
|||
Eric
Rose
|
155,000
|
|||
Michael
Tarnok
|
50,000
|
·
|
$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. The initial options will vest in
equal
annual installments 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.
|
·
|
each
person we know to be the beneficial owner of more than 5% of our
common
stock;
|
·
|
each
of our current directors;
|
·
|
each
of our NEO’s shown in our Summary Compensation Table;
and
|
·
|
all
current directors and NEO’s as a group.
|
Name
and Address of Beneficial Owner (1)
|
Amount
and Nature
of
Beneficial
Ownership
|
Percentage
of Shares Outstanding
|
|||||
Davidson
Kemper Partners and related entities (2)
|
2,676,897
|
6.1
|
%
|
||||
QVT
Financial LP (3)
|
2,355,239
|
5.4
|
%
|
||||
Kevin
J. Cameron (4)
|
26,667
|
—
|
* | ||||
Wyche
Fowler, Jr. (5)
|
29,667
|
—
|
* | ||||
Malcolm
Hoenlein (6)
|
110,000
|
—
|
* | ||||
Jack
Kaye (7)
|
28,067
|
—
|
* | ||||
Beth
F. Levine (8)
|
53,500
|
—
|
* | ||||
Eric
Rose, M.D. (9)
|
122,500
|
—
|
* | ||||
Mark
Stier (10)
|
27,500
|
—
|
* | ||||
Michael
P. Tarnok
|
1,100
|
—
|
* | ||||
Michael
S. Weiss (11)
|
5,369,885
|
11.0
|
%
|
||||
All
current directors and named executive officers as a group
(12)
|
5,768,886
|
11.7
|
%
|
(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 David Kempner Partners is 65 East 55th
Street, 19th
Floor, New York, NY 10022. Messrs. Thomas L. Kempner, Jr., Marvin
H.
Davidson, Stephen M. Dowicz, Scott E. Davidson, Michael J. Leffell,
Timothy I. Levart, Robert J. Brivio, Jr., Anthony A. Yoseloff, Eric
P.
Epstein, Avram Z. Friedman and Conor Bastable (collectively, the
“Principals”) may be deemed to beneficially own an aggregate 2,676,897
shares as a result of their voting and dispositive power over the
2,676,897 shares beneficially owned by various Davidson Kempner entities.
This information is based on a Schedule 13G filed on March 14,
2008.
|
(3)
|
The
address of QVT Financial LP (“QVT Financial”) is 1177 Avenue of the
Americas, 9th
Floor, New York, NY 10036. QVT Financial LP may be deemed to be the
beneficial owner of the shares owned by QVT Fund LP and Quintessence
Fund,
L.P. and the shares held in the Deutsche Bank Account for a separate
discretionary account (the “Deutsche Bank Account”) managed for Deutsche
Bank AG. QVT Financial GP LLC, as General Partner of QVT Financial
may be
deemed to beneficially own the shares of our common stock reported
by QVT
Financial. This information is based on a Schedule 13G filed March
13,
2008.
|
(4)
|
Includes
26,667 shares of our common stock issuable upon the exercise of
options.
|
(5)
|
Includes
26,667 shares of our common stock issuable upon the exercise of
options.
|
(6)
|
Includes
110,000 shares of our common stock issuable upon the exercise of
options.
|
(7)
|
Includes
26,667 shares of our common stock issuable upon the exercise of
options.
|
(8)
|
Includes
37,500 shares of our common stock issuable upon the exercise of
options.
|
(9)
|
Includes
122,500 shares of our common stock issuable upon the exercise of
options.
|
(10)
|
Includes
25,000 shares of our common stock issuable upon the exercise of
options.
|
(11)
|
Includes
5,162,500 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.
|
(12)
|
Includes
5,729,886 shares of our common stock issuable upon the exercise of
options.
|
i. |
The
designation of the series, which may be by distinguishing number,
letter,
or title.
|
ii. |
The
number of shares of the series, which number the Board of Directors
may
thereafter (except
where otherwise provided in the Preferred Stock Designation) increase
or
decrease (but not below the number of shares thereof then
outstanding).
|
iii. |
The
amounts or rates at which dividends will be payable on, and the
preferences, if any, of shares of the series in respect of dividends,
and
whether such dividends, if any, shall be cumulative or
noncumulative.
|
iv. |
Dates
at which dividends, if any, shall be
payable.
|
v. |
The
redemption rights and price or prices, if any, for shares of the
series.
|
vi. |
The
terms and amount of any sinking fund, if any, provided for the
purchase or
redemption of shares of the series.
|
vii. |
The
amounts payable on, and the preferences, if any, of shares of the
series
in the event of any voluntary or involuntary liquidation, dissolution
or
winding up of the affairs of the
Corporation.
|
viii. |
Whether
the shares of the series shall be convertible into, or exchangeable,
or
redeemable for, shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if
so, the
specification of such other class or series or such other security,
the
conversion or exchange price or prices or rate or rates, any adjustments
thereof, the date or dates at which such shares shall be convertible
or
exchangeable and all other terms and conditions upon which such
conversion
or exchange may be made.
|
ix. |
The
voting rights, if any, of the holders of shares of the series generally
or
upon specified events.
|
x. |
Any
other rights, powers, preferences of such shares as are permitted
by
law.
|