0001145443-13-000795.txt : 20130311 0001145443-13-000795.hdr.sgml : 20130311 20130311163431 ACCESSION NUMBER: 0001145443-13-000795 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20130305 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Submission of Matters to a Vote of Security Holders ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20130311 DATE AS OF CHANGE: 20130311 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Biodel Inc CENTRAL INDEX KEY: 0001322505 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-33451 FILM NUMBER: 13681188 BUSINESS ADDRESS: STREET 1: 100 SAW MILL ROAD CITY: DANBURY STATE: CT ZIP: 06810 BUSINESS PHONE: 203-796-5000 MAIL ADDRESS: STREET 1: 100 SAW MILL ROAD CITY: DANBURY STATE: CT ZIP: 06810 8-K 1 d30294.htm 8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

______________

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): March 5, 2013

BIODEL INC.
(Exact name of registrant as specified in its charter)

Commission File Number 001-33451



Delaware (State or other jurisdiction of incorporation or organization)		90-0136863 (IRS Employer Identification Number)

100 Saw Mill Road Danbury, Connecticut (Address of principal executive offices)		06810 (Zip code)

(203) 796-5000

(Registrant's telephone number, including area code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:


[ ]	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ]	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ]	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ]	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

Amendment and Restatement of 2010 Stock Incentive Plan; Revised forms of Agreements

On March 5, 2013, Biodel Inc. (the “Company”) held its 2013 annual meeting of stockholders at the Company’s headquarters in Danbury, Connecticut (the “Annual Meeting”). At the Annual Meeting, the Company’s stockholders approved an amendment to and restatement of the Company's 2010 Stock Incentive Plan (the “Stock Incentive Plan”). The amendment and restatement:

increased the number of shares of common stock reserved for issuance under the Stock Incentive Plan so that, effective as of March 5, 2013, the number of shares available for new awards under the Stock Incentive Plan is 3,750,000 (less the number of shares subject to awards granted on or after October 1, 2012), and provided that on or after October 1, 2012, shares subject to options and stock appreciation rights (“SARs”) will be counted against this limit as one share for every one share granted, but any shares that are subject to awards other than options or SARs will be counted against this limit as 1.5 shares for every one share granted;

re-approved the material terms of the performance goals, in order to grant awards that are intended to qualify as “performance-based compensation” exempt from the $1,000,000 deductibility cap under Section 162(m) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (“Section 162(m)”);

approved the sub-limits for cash awards, awards of options/SARs, and awards other than options/SARs, measured by the number of shares earned per calendar year per participant, for purposes of complying with the performance-based exemption under Section 162(m);

approved a sub-limit for annual grants to directors;

provided that shares available under a shareholder approved plan of an acquired company may be used for awards under the Stock Incentive Plan to individuals who were not employees or directors of the Company or a subsidiary prior to the transaction and do not reduce the share reserve;

provided that in the event that on the last business day of the term of an option or SAR either (i) the exercise of the option (other than an incentive stock option) or SAR is prohibited by applicable law or (ii) shares may not be purchased or sold by certain participants due a “black-out period” or a “lock-up” agreement, such term will be extended for a period of 30 days following the prohibited period;

provided that an award agreement may provide for automatic exercise on the last day of the term of an option or SAR, if such option or SAR is “in the money”, by means of a net exercise;

eliminated the “single trigger” change in control provision such that upon a change in control of the Company, awards will no longer automatically accelerate, and to provide for a “double trigger” in the event that a participant incurs a qualifying termination following a change in control in which awards are assumed or substituted for by a successor;

provided a recoupment provision in the event of a restatement of the Company’s financial statements;

extended the term of the Stock Incentive Plan to January 21, 2023; and

made certain other clarifying and ministerial changes.

In connection with the amendment and restatement of the Stock Incentive Plan, on March 5, 2013, the Company’s board of directors adopted new forms of the agreements to be used by the Company in issuing awards of nonstatutory stock options, incentive stock options and restricted stock units under the Stock Incentive Plan.

The amended and restated Stock Incentive Plan is incorporated herein by reference as Exhibit 99.1. Copies of the new forms of nonstatutory stock agreement, incentive stock option agreement and restricted stock unit agreement are attached hereto as Exhibits 99.2, 99.3 and 99.4, respectively. The foregoing description of the amendment and restatement of the Stock Incentive Plan is qualified in its entirety by reference to the full text of the plan.

Item 5.07

Submission of Matters to a Vote of Security Holders

At the Annual Meeting, Ira W. Lieberman and Davey S. Scoon were elected as Class III Directors, each for three-year terms, until the 2016 annual meeting of stockholders or until their respective successors are elected and qualified. At the Annual Meeting, the stockholders also (i) voted to approve the amendment and restatement of the 2010 Stock Incentive Plan (as described above), including to reserve additional shares of common stock for issuance thereunder; and (ii) voted to ratify the appointment of BDO USA, LLP as the Company’s independent registered public accounting firm for the fiscal year ending September 30, 2013. The tabulation of the voting results is as follows:

Agenda Item 1: Election of Directors


Nominees	For	Withheld	Broker Non-Votes
Ira W. Lieberman	3,244,659	498,113	5,262,828
Davey S. Scoon	3,344,575	398,197	5,262,828

Agenda Item 2: Amendment and Restatement of 2010 Stock Incentive Plan


For	Against	Abstain	Broker Non-Votes
3,158,875	578,508	5,389	5,262,828

Agenda Item 3: Ratification of Appointment of Independent Registered Public Accounting Firm


For	Against	Abstain
8,865,975	119,332	20,293

Item 9.01.

Financial Statements and Exhibits

(d)

Exhibits.

99.1

2010 Stock Incentive Plan, as amended and restated March 5, 2013 (Incorporated by reference to Exhibit A of the registrant’s Definitive Proxy Statement on Schedule 14A filed on January 28, 2013).

99.2

Form of Nonstatutory Stock Option Agreement

99.3

Form of Incentive Stock Option Agreement

99.4

Form of Restricted Stock Unit Agreement

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date:

March 11, 2013

BIODEL INC.

By: /s/ Paul S. Bavier

Paul S. Bavier, General Counsel

EXHIBIT INDEX

Exhibit No.

Description

99.1

2010 Stock Incentive Plan, as amended and restated March 5, 2013 (Incorporated by reference to Exhibit A of the registrant’s Definitive Proxy Statement on Schedule 14A filed on January 28, 2013).

99.2

Form of Nonstatutory Stock Option Agreement

99.3

Form of Incentive Stock Option Agreement

99.4

Form of Restricted Stock Unit Agreement

EX-99.2 2 d30294_ex99-2.htm EX-99.2

Biodel Inc.

2010 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED

NONSTATUTORY STOCK OPTION AGREEMENT

Biodel Inc. (the “Company”) has granted you an option (the “Option”) under its 2010 Stock Incentive Plan, as amended and restated (the “Plan”), as set forth in this agreement (the “Agreement”). The Option lets you purchase a specified number (the “Option Shares”) of shares of the Company’s common stock, at a specified price per share (the “Exercise Price”).

The Option is subject in all respects to the applicable provisions of the Plan. This Agreement does not cover all of the rules that apply to the Option under the Plan, and the Plan defines any capitalized terms in this Agreement and Schedule I that the Agreement does not define.

In addition to the Plan’s terms and restrictions, the following terms and restrictions apply to the Option:

Option
Exercisability

While your Option remains in effect under the Expiration section below, you may exercise any exercisable portions of the Option (and buy the Option Shares) under the timing rules Schedule I specifies under “Option Exercisability Provisions.”

Method of
Exercise and
Payment for
Shares

Subject to this Agreement and the Plan, you may exercise an Option only by providing a written notice (or notice through another previously approved method, which could include a web-based or voice- or e-mail system) to the Secretary of the Company or to whomever the Board (or the Committee) designates, that is received on or before the date the Option expires. Each such notice must satisfy whatever procedures then apply to the Option and must contain such representations (statements from you about your situation) as the Company requires. You must, at the same time, pay the Exercise Price using one or more of the following methods:

Cash/Check

cash or by check, payable to the order of the Company;

Cashless
Exercise

(i) delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price and any required tax withholding or (ii) delivery by you to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price and any required tax withholding;

Stock

delivery (either by actual delivery or attestation) of shares of Common Stock owned by you valued at their Fair Market Value, provided (i) such method of payment is then permitted under applicable law, (ii) such Common Stock, if acquired directly from the Company, was owned by you for such minimum period of time, if any, as may be established by the Board in its discretion and (iii) such Common Stock is not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements;

Net Exercise

delivery of a notice of “net exercise” to the Company, as a result of which you would pay the exercise price for the portion of the Option being exercised by cancelling a portion of the Option for such number of shares as is equal to the exercise price divided by the excess of the Fair Market Value on the date of exercise over the Option exercise price per share; or

any combination of the above permitted forms of payments.

The Board (or the Committee) can approve additional payment methods subject to any prohibitions under applicable law.

Notwithstanding the foregoing, if on the last day of the term of the Option the Fair Market Value of one share exceeds the Exercise Price, you have not exercised the Option, and the Option has not expired, the Option shall be deemed to have been exercised by you on such day with payment made by withholding shares otherwise issuable in connection with the exercise of the Option. In such event, the Company shall deliver to you the number of shares for which the Option was deemed exercised, less the number of shares required to be withheld for the payment of the total purchase price and required withholding taxes; provided, however, any fractional share shall be settled in cash.

Expiration

You cannot exercise an Option that has expired. The Option will expire no later than the close of business on the Term Expiration Date shown on Schedule I, subject to Section 5(d) of the Plan which provides for a potential 30-day extension in the event of a legal prohibition, black-out period or lock-up agreement that prohibits the exercise of the Option. The Option Expiration Rules in Schedule I provide the circumstances under which the Option will terminate before the Term Expiration Date because of, for example, your termination of employment or other service providing relationship. Except as the Board (or the Committee) otherwise determines, the Plan will treat your service-providing relationship (and any further increases in exercisability of the Option) as ending if you are an employee or member of the Board of Directors on the Date of Grant and become an independent contractor. The Board (or the Committee) can override the expiration provisions of Schedule I.

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Change
In Control
Event

If a Change in Control Event (as defined in the Plan) occurs while you remain employed by the Company, the Options will be treated as provided in the Plan, except as Schedule 1 may otherwise provide.

Compliance
with Law

You may not exercise an Option if the Company’s issuing stock upon such exercise would violate any applicable federal or state securities laws or other laws or regulations. You may not sell or otherwise dispose of the Option Shares in violation of applicable law. As part of this prohibition, you may not use any exercise procedure that includes a sale on the market if the Company’s insider trading policy then prohibits you from selling to the market.

Additional
Conditions
to Exercise

The Company may postpone issuing and delivering any Option Shares for so long as the Company determines to be advisable to satisfy the following:

its completing or amending any securities registration or qualification of the Option Shares or its or your satisfying any exemption from registration under any Federal or state law, rule, or regulation;

its receiving proof it considers satisfactory that a person seeking to exercise the Option after your death is entitled to do so;

your complying with any requests for representations under the Plan; and

its or your complying with any federal, state, or local tax withholding obligations.

Additional
Representations
from You

If you exercise an Option at a time when the Company does not have a current registration statement (generally on Form S-8) under the Securities Act of 1933 (the “Act”) that covers issuances of shares to you, you must comply with the following before the Company will issue the Option Shares to you. You must —

represent to the Company, in a manner satisfactory to the Company’s counsel, that you are acquiring the Option Shares for your own account and not with a view to reselling or distributing the Option Shares; and

agree that you will not sell, transfer, or otherwise dispose of the Option Shares unless:

a registration statement under the Act is effective at the time of disposition with respect to the Option Shares you propose to sell, transfer, or otherwise dispose of; or

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the Company has received an opinion of counsel or other information and representations it considers satisfactory to the effect that, because of Rule 144 under the Act or otherwise, no registration under the Act is required.

No Effect on
Employment
or Other
Relationship

Nothing in this Agreement restricts the Company’s rights or those of any of its affiliates to terminate your employment or other relationship at any time, for any or no reason. The termination of employment or other relationship, whether by the Company or any of its affiliates or otherwise, and regardless of the reason for such termination, has the consequences provided for under the Plan and any applicable employment or severance agreement or plan.

Not a Stockholder

You understand and agree that the Company will not consider you a stockholder for any purpose with respect to any of the Option Shares until you have exercised the Option, paid for the shares, and received evidence of ownership.

No Effect on
Running Business

You understand and agree that the existence of an Option will not affect in any way the right or power of the Company or its stockholders to make or authorize any adjustments, recapitalizations, reorganizations, or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issuance of bonds, debentures, preferred or other stock, with preference ahead of or convertible into, or otherwise affecting the Company’s common stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether or not of a similar character to those described above.

Governing Law

The laws of the State of Delaware will govern all matters relating to this Agreement, without regard to the principles of conflict of laws.

Notices

Any notice you give to the Company must follow the procedures then in effect. If no other procedures apply, you must send your notice in writing by hand or by mail to the office of the Company’s Secretary (or to the Chair of the Board (or the Committee) if you are then serving as the sole Secretary). If mailed, you should address it to the Company’s Secretary (or the Chair of the Board (or the Committee)) at the Company’s then corporate headquarters, unless the Company directs optionees to send notices to another corporate department or to a third party administrator or specifies another method of transmitting notice. The Company and the Board (or the Committee) may address any notices to you using its standard electronic communications methods or at your office or home address as reflected on the Company’s personnel or other business records. You and the Company may change the address for notice by like notice to the other, and the Company can also change the address for notice by general announcements to optionees.

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Section 409A

This Agreement is intended to be exempt from, or otherwise comply with the requirements of Section 409A of the Code (“Section 409A”) and must be construed consistently with that section. In any event, the Company makes no representations or warranty and shall have no liability to you or any other person, if any provisions of or payments under this Agreement are determined to constitute deferred compensation subject to Section 409A but not to satisfy the conditions of that section.

Withholding

Issuing the Option Shares is contingent on satisfaction of all obligations with respect to required tax or other required withholdings (for example, in the U.S., Federal, state, and local taxes.) The Company may take any action permitted under Section 11(e) of the Plan to satisfy such obligation, including, if the Board (or the Committee) so determines, satisfying the tax obligations by (i) reducing the number of Option Shares to be issued to you in connection with any exercise of the Option by that number of Option Shares (valued at their Fair Market Value on the date of exercise) that would equal all taxes required to be withheld (at their minimum withholding levels), (ii) accepting payment of the withholdings from a broker in connection with a Cashless Exercise of the Option or directly from you, or (iii) taking any other action under Section 11(e). If a fractional share remains after deduction for required withholding, the Company will pay you the value of the fraction in cash.

Plan Governs

Wherever a conflict may arise between the terms of this Agreement and the terms of the Plan, the terms of the Plan will control. The Board (or the Committee) may adjust the number of Option Shares and the Exercise Price and other terms of the Option from time to time as the Plan provides.

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OPTIONEE ACKNOWLEDGMENT

I acknowledge I received a copy of the Plan. I represent that I have read and am familiar with the Plan’s terms. By signing where indicated on Schedule I, I accept the Option subject to all of the terms and provisions of this Agreement and of the Plan under which the Option is granted, as the Plan may be amended in accordance with its terms. I agree to accept as binding, conclusive, and final all decisions or interpretations of the Board (or the Committee) concerning any questions arising under the Plan with respect to the Option.

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BIODEL INC.

2010 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED

NONSTATUTORY STOCK OPTION AGREEMENT FOR EMPLOYEES

AND DIRECTORS

Schedule I

Optionee Information:

Name: ______________________________

Signature: _____________________________

Option Information:

Option Shares: ___________________

Exercise Price per Share: ___________________

Date of Grant: ___________________

Term Expiration Date: ___________________

Option Exercisability Provisions

This Option will become exercisable as to __% of the Option Shares on the __ anniversary of the Date of Grant and as to an additional __% of the initial Option Shares on __________________, assuming you remain employed or a member of the Board of Directors, or, to the extent the Board (or the Committee) provides for ongoing credit, otherwise continue your individual service-providing relationship through each relevant date. Any fractional shares that do not become exercisable on such dates will be carried forward to the following year, unless the Board (or the Committee) selects a different treatment. The exercise schedule will cease if you become an independent contractor (other than as a member of the Board of Directors), except as the Board (or the Committee) otherwise determines.

Option Expiration Rules

If the Option is not fully exercisable when you cease to be employed or a member of the Board of Directors (even if you continue service as an independent contractor), any unexercisable portion will then expire immediately (except as set forth below in connection with a Change in Control Event). If any portion of the Option is exercisable, that portion will remain exercisable until the first to occur of the following, each as defined further in the Plan if not otherwise defined below, and then immediately expire:

The 90^th day after your employment or other individual-service providing relationship ends due to your retirement (unless another provision applies)

The 90^th day after your employment or other individual-service providing relationship ends due to any reason

other than for your death or Disability (unless another provision applies)

For Disability, the 12 month anniversary of your termination of employment for Disability

The first anniversary of your death

The Term Expiration Date

Change in
Control Event

In accordance with Section 10 of the Plan, in the event of a Change in Control Event in which the successor company assumes or substitutes the Options, if your employment or service with such successor company (or the Company) or a subsidiary thereof is terminated within 12 months following such Change in Control Event either by the successor company (or the Company) or a subsidiary thereof without “Cause” or by you for “Good Reason” (each as defined below), then your Options outstanding as of such termination of employment will immediately vest, become fully exercisable, and may thereafter be exercised for 12 months.

Definitions

Cause

For purposes solely of this Agreement, termination of your employment will be for "Cause " if it is for any of the following:

(a)

Your refusal to carry out any of your material lawful duties or any directions or instructions of the Board (or board of directors of a successor) or senior management of the Company (or successor) that are reasonably consistent with those duties;

(b)

Your failure to perform satisfactorily any of your lawful duties that are consistent with duties for any similarly situated individual or any directions or instructions of the Board (or board of directors of a successor) or senior management that are consistent with those duties, as long as you have been given notice and have failed to correct any such failure within 10 days thereafter (unless any such correction by its nature cannot be done in 10 days, in which event you will have a reasonable time to correct the failure) and provided further that the Company (or successor) shall have no such obligation to give notice and you will have no such opportunity to correct failures more than two times in any 12 calendar month period;

(c)

Your violation of a local, state or federal law involving the commission of a crime, other than minor traffic violations, or any other criminal act involving moral turpitude;

(d)

Your gross negligence, willful misconduct, or breach of your duty to the Company (or successor) involving self-dealing or personal profit;

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(e)

Your current abuse of alcohol or controlled substances; deception, fraud, misrepresentation or dishonesty; or any incident materially compromising your reputation or ability to represent the Company (or successor) with investors, customers or the public; or

(f)

Your other material violation of any provision of any employment, retention, severance, or change in control agreement covering you not described in (a) or (b) above, subject to the same notice and opportunity-to-correct provisions as are set forth in (b) above.

Good Reason

For purposes solely of this Agreement, your resignation will be for "Good Reason " if it is for any of the following without your consent:

(a)

A material reduction of your annual base salary, regardless of any change in your duties or responsibilities;

(b)

Any material diminution in your position, authority, duties or responsibilities or any other action by the Company (or successor) that results in a material diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated and inadvertent action not taken in bad faith and that is remedied by the Company (or successor) within 10 days after the Company (or successor) has received notice of such action from you, provided that this clause (b) will only apply to you if a substantially comparable provision also exists in an employment, retention, severance, or change in control agreement covering you;

(c)

The Company's (or successor’s) requiring you to be based at any office or location more than 50 miles from the location of your then assigned worksite; or

(d)

Any other material violation by the Company (or successor) of any provision of an employment agreement or other agreement under which you are providing services to the Company (or successor).

Notwithstanding the foregoing, no basis for a termination for Good Reason will be deemed to exist unless you notify the Company (or successor) in writing of any event in (a) through (d) above within 90 days of the first occurrence of such event and the Company (or its successor) fails to cure any such event within 30 days after receipt of the notice. Furthermore, your termination of employment for Good Reason must occur no later than one year following the initial existence of such condition.

Disability

For the purposes solely of this Agreement, “Disability” means your inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental

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impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. You shall not be deemed to have a Disability until proof of the existence thereof shall have been furnished to the Board of Directors in such form and manner, and at such times, as the Board of Directors may require. Any determination by the Board of Directors that you do or do not have a Disability shall be final and binding upon you and the Company.

This Option is not intended to be an Incentive Stock Option.

By signing this Schedule I, you agree to the acknowledgement on the last page of your Stock Option Agreement.

The Plan document is available on the Biodel Inc. website. The Prospectus for the Plan, the Company’s Annual Report on Form 10-K, and other filings the Company makes with the Securities and Exchange Commission are available for your review on the Company’s web site. You may also obtain paper copies of these documents upon request to the Company’s HR department.

Neither the Company nor anyone else is making any representations or promises regarding the duration of your service, exercisability of the Option, the value of the Company's stock or of this Option, or the Company's prospects. The Company is not providing any advice regarding tax consequences to you or regarding your decisions regarding the Option; you agree to rely only upon your own personal advisors.

NO ONE MAY SELL, TRANSFER, OR DISTRIBUTE THE OPTION OR THE SECURITIES THAT MAY BE PURCHASED UPON EXERCISING THE OPTION WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO BIODEL INC. OR OTHER INFORMATION AND REPRESENTATIONS SATISFACTORY TO IT THAT SUCH REGISTRATION IS NOT REQUIRED.

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EX-99.3 3 d30294_ex99-3.htm EX-99.3 Biodel Inc

Biodel Inc.

2010 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED

INCENTIVE STOCK OPTION AGREEMENT

Biodel Inc. (the “Company”) has granted you an option (the “Option”) under its 2010 Stock Incentive Plan, as amended and restated (the “Plan”), as set forth in this agreement (the “Agreement”). The Option lets you purchase a specified number (the “Option Shares”) of shares of the Company’s common stock, at a specified price per share (the “Exercise Price”).

Schedule I to this Agreement provides the details for your grant. It specifies the number of Option Shares, the Exercise Price, the Date of Grant, the latest date the Option will expire (the “Term Expiration Date ”), and any special rules that already apply to your Option. The Company intends the Option to be an incentive stock option (“ISO ”) under Internal Revenue Code Section 422. Biodel Inc. intends to treat Options designated as ISOs as ISOs to the limits the Code allows and as nonqualified stock options for any additional Option Shares.

In addition to the Plan’s terms and restrictions, the following terms and restrictions apply to the Option:

Option
Exercisability

Method of
Exercise and
Payment for
Shares

Cash/Check

cash or by check, payable to the order of the Company;

Cashless
Exercise

Stock

any combination of the above permitted forms of payments.

The Board (or the Committee) can approve additional payment methods subject to any prohibitions under applicable law.

Expiration

You cannot exercise an Option that has expired. The Option will expire no later than the close of business on the Term Expiration Date shown on Schedule I. The Option Expiration Rules in Schedule I provide the circumstances under which the Option will terminate before the Term Expiration Date because of, for example, your termination of employment or other service providing relationship. Except as the Board (or the Committee) otherwise determines, the Plan will treat your service-providing relationship (and any further increases in exercisability of the Option) as ending if you are an employee on the Date of Grant and become an independent contractor. The Board (or the Committee) can override the expiration provisions of Schedule I.

Special ISO Rule

If you acquire Option Shares by exercising an Incentive Stock Option, you agree to promptly notify the Company if you dispose of those Option Shares within one year after you acquired them or within two years after the Incentive Stock Option’s Date of Grant.

Change
In Control
Event

If a Change in Control Event (as defined in the Plan) occurs while you remain employed by the Company, the Options will be treated as provided in the Plan, except as Schedule 1 may otherwise provide.

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Compliance
with Law

Additional
Conditions
to Exercise

The Company may postpone issuing and delivering any Option Shares for so long as the Company determines to be advisable to satisfy the following:

its receiving proof it considers satisfactory that a person seeking to exercise the Option after your death is entitled to do so;

your complying with any requests for representations under the Plan; and

its or your complying with any federal, state, or local tax withholding obligations.

Additional
Representations
from You

agree that you will not sell, transfer, or otherwise dispose of the Option Shares unless:

a registration statement under the Act is effective at the time of disposition with respect to the Option Shares you propose to sell, transfer, or otherwise dispose of; or

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No Effect on
Employment
or Other
Relationship

Not a Stockholder

No Effect on
Running Business

Governing Law

The laws of the State of Delaware will govern all matters relating to this Agreement, without regard to the principles of conflict of laws.

Notices

Section 409A

- 4 -

are determined to constitute deferred compensation subject to Section 409A but not to satisfy the conditions of that section.

Withholding

Plan Governs

OPTIONEE ACKNOWLEDGMENT

- 5 -

BIODEL INC.

2010 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED

INCENTIVE STOCK OPTION AGREEMENT FOR EMPLOYEES

Schedule I

Optionee Information:

Name: ______________________________

Signature: _____________________________

Option Information:

Option Shares: ___________________

Exercise Price per Share: ___________________

Date of Grant: ___________________

Term Expiration Date: ___________________

Option Exercisability Provisions

This Option will become exercisable as to __% of the Option Shares on the __ anniversary of the Date of Grant and as to an additional __% of the initial Option Shares on ______________, assuming you remain employed or become and remain a member of the Board, or, to the extent the Board (or the Committee) provides for ongoing credit, otherwise continue your individual service-providing relationship through each relevant date. Any fractional shares that do not become exercisable on such dates will be carried forward to the following year, unless the Board (or the Committee) selects a different treatment. The exercise schedule will cease if you become an independent contractor (other than as a member of the Board), except as the Board (or the Committee) otherwise determines.

Option Expiration Rules

If the Option is not fully exercisable when you cease to be employed or become and remain a member of the Board (even if you continue service as an independent contractor), any unexercisable portion will then expire immediately (except as set forth below in connection with a Change in Control Event). If any portion of the Option is exercisable, that portion will remain exercisable until the first to occur of the following, each as defined further in the Plan, and then immediately expire:

The 90^th day after your employment or other individual-service providing relationship ends due to your retirement (unless another provision applies)

The 90^th day after your employment or other individual-service providing relationship ends due to any reason other than for your death or Disability (unless another provision applies)

For Disability, the 12 month anniversary of your termination of employment for Disability

The first anniversary of your death

The Term Expiration Date

Change in
Control Event

Definitions

Cause

For purposes solely of this Agreement, termination of your employment will be for "Cause " if it is for any of the following:

(a)

(b)

(c)

Your violation of a local, state or federal law involving the commission of a crime, other than minor traffic violations, or any other criminal act involving moral turpitude;

(d)

Your gross negligence, willful misconduct, or breach of your duty to the Company (or successor) involving self-dealing or personal profit;

(e)

Your current abuse of alcohol or controlled substances; deception, fraud, misrepresentation or dishonesty; or any incident materially compromising your reputation or ability to

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represent the Company (or successor) with investors, customers or the public; or

(f)

Good Reason

For purposes solely of this Agreement, your resignation will be for "Good Reason " if it is for any of the following without your consent:

(a)

A material reduction of your annual base salary, regardless of any change in your duties or responsibilities;

(b)

(c)

The Company's (or successor’s) requiring you to be based at any office or location more than 50 miles from the location of your then assigned worksite; or

(d)

Any other material violation by the Company (or successor) of any provision of an employment agreement or other agreement under which you are providing services to the Company (or successor).

Disability

For the purposes solely of this Agreement, “Disability” means your inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. You shall not be deemed to have a

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Disability until proof of the existence thereof shall have been furnished to the Board of Directors in such form and manner, and at such times, as the Board of Directors may require. Any determination by the Board of Directors that you do or do not have a Disability shall be final and binding upon you and the Company.

This Option is intended to be an Incentive Stock Option. Biodel Inc. intends to treat Options designated as ISOs as ISOs to the limits the Code allows and as nonqualified stock options for any additional Option Shares.

By signing this Schedule I, you agree to the acknowledgement on the last page of your Stock Option Agreement.

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EX-99.4 4 d30294_ex99-4.htm EX-99.4


⃞	Participant’s Copy
⃞	Company’s Copy

BIODEL INC.

2010 STOCK INCENTIVE PLAN, AS AMENDED AND RESTATED

RESTRICTED STOCK UNIT AGREEMENT

To _____________:

Biodel Inc. (the “Company”) has granted you (the "Grant") on ________________, 20___ restricted stock units as set forth on Exhibit A (the “RSUs”) under its 2010 Stock Incentive Plan, as amended and restated (the "Plan"), as set forth in this agreement (the “Agreement ”). The RSUs are subject to the Vesting Schedule specified on Exhibit A.

The Grant is subject in all respects to the applicable provisions of the Plan. This Agreement does not cover all of the rules that apply to the Grant under the Plan, and the Plan defines any capitalized terms in this Agreement that this Agreement does not define.

In addition to the Plan’s terms and restrictions, the following terms and restrictions apply:

Vesting Schedule

The Grant becomes nonforfeitable (“Vested”) as to some or all of the RSUs only as provided on Exhibit A.

Distribution Date

You will receive a distribution of shares (the “Shares ”) of Company common stock (“Common Stock”) equivalent to your Vested RSUs on the date determined under Exhibit A (the "Distribution Date”), subject to any overriding provisions in the Plan.

Limited Status

You understand and agree that the Company will not consider you a shareholder for any purpose with respect to the Shares, unless and until the Shares have been issued to you on the Distribution Date. Notwithstanding the foregoing, you shall receive dividend equivalents with respect to the RSUs; provided, however, such dividend equivalents shall be accumulated and credited as additional shares, and paid to the Participant at the same time and only to the extent of the vesting of the underlying RSUs.

Voting

RSUs cannot be voted. You may not vote the Shares unless and until the Shares are distributed to you.

Restrictions
and
Forfeiture

You may not sell, assign, pledge, encumber, or otherwise transfer any interest (“Transfer”) in the Shares until the Shares are distributed to you. Any attempted Transfer that precedes the Distribution Date is invalid.

Unless the Administrator determines otherwise at any time or Exhibit A provides otherwise, if your service with the Company terminates for any reason before all of your RSUs are Vested, then you will forfeit such unvested RSUs (and the Shares to which they relate) to the extent that

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such RSUs do not otherwise Vest as a result of the termination. The forfeited RSUs will then immediately revert to the Company. You will receive no payment for RSUs that you forfeit.

Additional
Conditions
to Receipt

The Company may postpone issuing and delivering any Shares for so long as the Company determines to be advisable to satisfy the following:

its completing or amending any securities registration or qualification of the Shares or its or your satisfying any exemption from registration under any Federal or state law, rule, or regulation;

its receiving proof it considers satisfactory that a person or entity seeking to receive the Shares after your death is entitled to do so;

your complying with any requests for representations under the Grant and the Plan; and

its or your complying with any federal, state, or local tax withholding obligations.

Change
In Control
Event

If a Change in Control Event (as defined in the Plan) occurs while you remain employed by the Company, the RSUs will be treated as provided in the Plan, except as Exhibit A may otherwise provide.

Taxes and
Withholding

The RSUs provide tax deferral, meaning that they are not taxable to you until you actually receive Shares on or around the Distribution Date. You will then owe taxes at ordinary income tax rates as of the Distribution Date at the Shares' value.

The Company is required to withhold (in cash from salary or other amounts owed you) the applicable percentage of the value of the Shares on the Distribution Date, regardless of whether you sell them. If the Company does not choose to do so, you agree to arrange for payment of the withholding taxes and/or confirm that the Company is arranging for appropriate withholding.

Representations
from You

If the Vesting provisions of your RSU grant are satisfied and you receive Shares at a time when the Company does not have a current registration statement (generally on Form S-8) under the Act that covers issuances of Shares to you, you must comply with the following before the Company will release the Shares to you. You must:

represent to the Company, in a manner satisfactory to the Company’s counsel, that you are acquiring the Shares for your own account and not with a view to reselling or distributing the Shares; and

agree that you will not sell, transfer, or otherwise dispose of the Shares unless:

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a registration statement under the Act is effective at the time of disposition with respect to the Shares you propose to sell, transfer, or otherwise dispose of; or

Additional
Restriction

You will not receive the Shares if issuing the Shares would violate any applicable federal or state securities laws or other laws or regulations.

No Effect on
Employment
or Other
Relationship

Nothing in this Agreement restricts the Company’s rights or those of any of its affiliates to terminate your employment or other relationship at any time, with or without cause. The termination of your relationship, whether by the Company or any of its affiliates or otherwise, and regardless of the reason for such termination, has the consequences provided for under the Plan and any applicable employment or severance agreement or plan.

No Effect on
Running Business

You understand and agree that the existence of the RSU will not affect in any way the right or power of the Company or its stockholders to make or authorize any adjustments, recapitalizations, reorganizations, or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issuance of bonds, debentures, preferred or other stock, with preference ahead of or convertible into, or otherwise affecting the Company’s common stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether or not of a similar character to those described above.

Section 409A

This Agreement is intended to comply with the requirements of Section 409A of the Code (“Section 409A”) and must be construed consistently with that section. Notwithstanding anything in the Plan or this Agreement to the contrary, to the extent necessary to avoid the imposition of any taxes under Section 409A, no payment or distribution under this Agreement that becomes payable by reason of your termination of employment with the Company will be made to you unless your termination of employment constitutes a “separation from service” (as such term is defined in Section 409A). For purposes of this Agreement, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A. If you are a “specified employee” as defined in Section 409A and, as a result of that status, any portion of the payments under this Agreement would otherwise be subject to taxation pursuant to Section 409A, you shall not be entitled to any payments upon a termination of employment until the earlier of (i) the expiration of the six-month period measured from the date of such “separation from service” (within the meaning of Section 409A) or (ii) the date of your death. Upon the expiration of the applicable Section 409A deferral period, all payments and benefits deferred pursuant to this

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section (whether they would have otherwise been payable in a single sum or in installments in the absence of such deferral) shall be paid or reimbursed to you in a lump sum as soon as practicable, but in no event later than ten days following such expired period, and any remaining payments due under this Agreement will be paid in accordance with the normal payment dates specified for them herein. Neither the Company nor you shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. In any event, the Company makes no representation or warranty and shall have no liability to you or any other person, if any provisions of or payments under this Agreement are determined to constitute deferred compensation subject to Section 409A but not to satisfy the conditions of that section.

Unsecured
Creditor

This Agreement creates a contractual obligation on the part of the Company to make payment under the RSUs credited to your account at the time provided for in this Agreement. Neither you nor any other party claiming an interest in deferred compensation hereunder shall have any interest whatsoever in any specific assets of the Company. Your right to receive payments hereunder is that of an unsecured general creditor of Company.

Governing Law

The laws of the State of Delaware will govern all matters relating to this Agreement, without regard to the principles of conflict of laws.

Notices

Any notice you give to the Company must follow the procedures then in effect. If no other procedures apply, you must send your notice in writing by hand or by mail to the office of the Company's Secretary. If mailed, you should address it to the Company's Secretary at the Company's then corporate headquarters, unless the Company directs participants to send notices to another corporate department or to a third party administrator or specifies another method of transmitting notice. The Company and the Administrator will address any notices to you at your office or home address as reflected on the Company's personnel or other business records. You and the Company may change the address for notice by like notice to the other, and the Company can also change the address for notice by general announcements to participants.

Plan Governs

Wherever a conflict may arise between the terms of this Agreement and the terms of the Plan, the terms of the Plan will control.

BIODEL INC.

Date:________________

By:________________________________

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ACKNOWLEDGMENT

I acknowledge I received a copy of the Plan. I represent that I have read and am familiar with the Plan's terms. I accept the Grant subject to all of the terms and provisions of this Agreement and of the Plan under which the Grant is made, as the Plan may be amended in accordance with its terms. I agree to accept as binding, conclusive, and final all decisions or interpretations of the Administrator concerning any questions arising under the Plan with respect to the Grant.

Date: ____________________

_____________________________________________

Name: _______________________________________

NO ONE MAY SELL, TRANSFER, OR DISTRIBUTE THE SECURITIES COVERED BY THE GRANT WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY OR OTHER INFORMATION AND REPRESENTATIONS SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

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Biodel Inc.

2010 Stock Incentive Plan, as Amended and Restated

Restricted Stock Unit

Exhibit A

Recipient Information:

Name: ___________________________________

Signature: X _________________________________

Grant Information:

RSUs: __________________________

Date of Grant: __________________________

Vesting Schedule

The Grant is Vested as to _________ of the RSUs on each of the next ______ anniversaries of the Date of Grant (each a “Vesting Date”), assuming you remain a service provider to the Company through those dates.

Any RSUs that would have Vested in the 12 months following your death or Disability will Vest instead upon your death or Disability.

In accordance with Section 10 of the Plan, in the event of a Change in Control Event in which the successor company assumes or substitutes the RSUs, if your employment or service with such successor company (or the Company) or a subsidiary thereof is terminated within 12 months following such Change in Control Event either by the successor company (or the Company) or a subsidiary thereof without “Cause” or by you for “Good Reason” (each as defined below), then the restrictions applicable to your RSUs shall lapse as of such termination of employment and the RSUs shall become fully vested and payable, subject to the Section 409A paragraph of this Agreement above.

Grant Expiration Rules

You will forfeit any unvested portions of the Grant immediately when you cease to be employed by (or a member of the Board of) the Company, except as set forth above in connection with a Change in Control Event.

Distribution Date

Your Distribution Date for any then Vested RSUs will be the earliest of the following:

Your Separation from Service (as defined under Section 409A), or

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a date to be determined by the Company between January 1 and March 15 of the year following the year in which portions of the RSUs Vest.

Definitions

Cause

For purposes solely of this Grant, termination of your employment will be for "Cause" if it is for any of the following:

(a)

(b)

(c)

Your violation of a local, state or federal law involving the commission of a crime, other than minor traffic violations, or any other criminal act involving moral turpitude;

(d)

Your gross negligence, willful misconduct, or breach of your duty to the Company (or successor) involving self-dealing or personal profit;

(e)

(f)

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Good Reason

For purposes solely of this Grant, your resignation will be for "Good Reason" if it is for any of the following without your consent:

(a)

A material reduction of your annual base salary, regardless of any change in your duties or responsibilities;

(b)

(c)

The Company's (or successor’s) requiring you to be based at any office or location more than 50 miles from the location of your then assigned worksite; or

(d)

Any other material violation by the Company (or successor) of any provision of an employment agreement or other agreement under which you are providing services to the Company (or successor).

Disability

For the purposes solely of this Grant, “Disability ” means your inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. You shall not be deemed to have a Disability until proof of the existence thereof shall have been furnished to the Board of Directors in such form and manner, and at such times, as the Board of Directors may require. Any determination by the Board of Directors that you do or do not have a Disability shall be final and binding upon you and the Company.

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