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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SCHEDULE 14A
OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
o | Preliminary Proxy Statement | |
o | Confidential, For Use of the Commission Only (as permitted by Rule 14a-6(e) (2) ) | |
x | Definitive Proxy Statement | |
o | Definitive Additional Materials | |
o | Soliciting Material Under Rule 14a-12 |
Halozyme Therapeutics, Inc.
(Name of Registrant as Specified in Its Charter)
Payment of Filing Fee (Check the appropriate box) :
x | No fee required. | |
o | 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: |
o | Fee paid previously with preliminary materials: | |
o 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: |
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Sincerely yours, | |
Jonathan E. Lim, M.D. | |
President and Chief Executive Officer, | |
Chairman of the Board of Directors |
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1. To elect two Class I directors, one Class II director and two Class III directors, to hold office for three, one and two-year terms respectively until their successors are elected and qualified. The Board of Directors has nominated Kenneth J. Kelley and Jonathan E. Lim for election as the Class I directors, John S. Patton for election as the Class II director and Robert L. Engler and Gregory I. Frost for election as the Class III directors. | |
2. To consider a proposal to approve our 2004 Stock Plan and to reserve an aggregate of 10,000,000 shares of our Common Stock for issuance under our existing 2001 Stock Plan and the 2004 Stock Plan. | |
3. To consider a proposal to ratify the appointment of Cacciamatta Accountancy Corporation as our independent auditors for the fiscal year ending December 31, 2005. | |
4. To transact such other business as may properly come before the meeting. |
David A. Ramsay | |
Chief Financial Officer and Secretary |
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Director | ||||||||||
Name | Principal Occupation | Age | Since | |||||||
Class I directors nominated for election at the 2005 annual meeting of stockholders, to serve until the 2008 annual meeting: | ||||||||||
Kenneth J. Kelley | Managing Director, K2 Bioventures | 46 | 2004 | |||||||
Jonathan E. Lim, M.D. | Chief Executive Officer, Halozyme | 33 | 2003 | |||||||
Class II director nominated for election at the 2005 annual meeting of stockholders, to serve until the 2006 annual meeting: | ||||||||||
John S. Patton, Ph.D. | Chief Scientific Officer, Nektar Therapeutics | 57 | 2000 | |||||||
Class III directors nominated for election at the 2005 annual meeting of stockholders, to serve until the 2007 annual meeting: | ||||||||||
Robert L. Engler, M.D. | Professor Emeritus, | 60 | 2004 | |||||||
University of California, San Diego | ||||||||||
Gregory I. Frost, Ph.D. | Chief Scientific Officer, Halozyme | 33 | 1999 |
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Name and Position | Shares | |||
Jonathan E. Lim, President and Chief Executive Officer | 303,422 | |||
Gregory I. Frost, Chief Scientific Officer | 111,753 | |||
David A. Ramsay, Chief Financial Officer | 96,745 | |||
Mark Wilson, Vice President, Business Development | 75,067 | |||
Carolyn Rynard, Vice President, Product Development and Manufacturing | 75,067 | |||
All Current Executive Officers, as a Group | 737,121 | |||
All Current Directors Who Are not Executive Officers, as a Group (3 Persons) | 525,000 | |||
All Employees, Excluding Current Executive Officers, as a Group | 867,879 |
Fiscal 2004 | Fiscal 2003 | |||||||
Audit Fees(1) | $ | 85,000 | $ | 58,000 | ||||
Audit-Related Fees(2) | $ | — | $ | — | ||||
Tax Fees(3) | $ | — | $ | — | ||||
All Other Fees(4) | $ | — | $ | — |
(1) | Audit Fees consist of fees billed for professional services rendered for the audit of the Company’s consolidated annual financial statements and review of the interim consolidated financial statements included in quarterly reports and services that are normally provided by Cacciamatta Accountancy Corporation in connection with statutory and regulatory filings or engagements. |
(2) | Audit-Related Fees consist of fees billed for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated financial statements and are not reported under “Audit Fees.” |
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(3) | Tax Fees consist of fees billed for professional services rendered for tax compliance, tax advice and tax planning (domestic and international). These services include assistance regarding federal, state and international tax compliance, acquisitions and international tax planning. |
(4) | All Other Fees consist of fees for products and services other than the services reported above. |
Number of Shares | |||||||||
Beneficially | |||||||||
Beneficial Owner(1) | Owned(2) | Percent(3) | |||||||
QVT Fund LP(4) | 4,160,000 | 8.2 | |||||||
527 Madison Avenue, 8th Floor | |||||||||
New York, New York 10022 | |||||||||
Elliot Feuerstein(5) | 3,561,516 | 7.2 | |||||||
Gregory I. Frost(6) | 3,826,552 | 7.5 | |||||||
Borgstrom Family(7) | 2,710,474 | 5.4 | |||||||
Jonathan Spanier(8) | 2,582,304 | 5.1 | |||||||
8732 St. Ives Drive | |||||||||
Los Angeles, California 90069 | |||||||||
Jonathan E. Lim(9) | 2,516,472 | 4.9 | |||||||
David A. Ramsay(10) | 786,679 | 1.6 | |||||||
Mark Wilson(11) | 565,942 | 1.1 | |||||||
John S. Patton(12) | 522,471 | 1.0 | |||||||
Carolyn Rynard(13) | 515,942 | 1.0 | |||||||
Kenneth J. Kelley(14) | 120,833 | * | |||||||
Robert L. Engler(15) | 130,833 | * | |||||||
Directors and executive officers as a group (9 persons)(16) | 9,501,667 | 18.6 |
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* | Less than 1%. |
(1) | Except as otherwise indicated, the persons named in this table have sole voting and investment power with respect to all shares of Common Stock shown as beneficially owned by them, subject to community property laws where applicable and to the information contained in the footnotes to this table. Unless otherwise noted, the address for each beneficial owner is: c/o Halozyme Therapeutics, Inc., 11588 Sorrento Valley Rd., Suite 17, San Diego, CA 92121. | |
(2) | Under the rules of the Securities and Exchange Commission, a person is deemed to be the beneficial owner of shares that can be acquired by such person within 60 days upon the exercise of options or warrants. Certain options granted under the DeliaTroph Pharmaceuticals, Inc. 2001 Stock Plan that were assumed by Halozyme in connection with the March 2004 merger of DeliaTroph Pharmaceuticals, Inc. and Global Yacht Services, Inc. are immediately exercisable, subject to our right to repurchase unvested shares upon termination of employment or other service at a price equal to the option exercise price. | |
(3) | Calculated on the basis of 49,790,342 shares of Common Stock outstanding as of March 1, 2005, provided that any additional shares of Common Stock that a stockholder has the right to acquire within 60 days after March 1, 2005, are deemed to be outstanding for the purpose of calculating that stockholder’s percentage beneficial ownership. | |
(4) | Based on a Schedule 13G filed by QVT Fund LP with the SEC on October 21, 2004. QVT Financial LP (“QVT Financial”) is the investment manager for QVT Fund LP (the “Fund”), which beneficially owns 4,160,000 shares of Common Stock, which were purchased from Halozyme in an October 2004 private placement. QVT Financial has the power to direct the vote and disposition of the Common Stock held by the Fund. Accordingly, QVT Financial may be deemed to be the beneficial owner of the 4,160,000 shares of Common Stock owned by the Fund. QVT Financial GP LLC, as General Partner of QVT Financial, may be deemed to beneficially own the same number of shares of Common Stock reported by QVT Financial. QVT Associates GP LLC, as General Partner of the Fund, may be deemed to beneficially own the same number of shares of Common Stock reported by the Fund. The beneficial ownership amounts set forth in this footnote include 960,000 shares of Common Stock issuable upon exercise of a warrant held by the Fund after April 15, 2005. Each of QVT Financial and QVT Financial GP LLC disclaim beneficial ownership of the 4,160,000 shares of Common Stock owned by the Fund. | |
(5) | Based on a Schedule 13G filed by Elliot Feuerstein with the SEC on February 11, 2005. | |
(6) | Includes 884,188 shares subject to warrants and options that may be exercised within 60 days after March 1, 2005, of which 316,098 of these shares are subject to a right of repurchase on behalf of Halozyme that will expire within 60 days after March 1, 2005. See footnote 2 above. | |
(7) | Based on Halozyme stock records. These are a group of individuals and trusts related to Per Henrik Borgstram, the former chief executive officer of DeliaTroph Pharmaceuticals, Inc. | |
(8) | Based on a Schedule 13G/ A filed by Jonathan Spanier with the SEC on February 18, 2005 as well as Halozyme stock records. Includes 523,313 warrants to purchase Common Stock. Also includes 474,890 shares of Common Stock and 158,677 warrants to purchase Common Stock held by Jonathan Spanier IRA Account. Also includes 50,000 Shares held by Jonathan Spanier under a custodial account for the benefit of a minor. | |
(9) | Includes 2,026,975 shares subject to warrants and options that may be exercised within 60 days after March 1, 2005, of which 992,158 of these shares are subject to a right of repurchase on behalf of Halozyme that will expire within 60 days after March 1, 2005. See footnote 2 above. |
(10) | Includes 410,269 shares subject to options that may be exercised within 60 days after March 1, 2005, of which 384,950 of these shares are subject to a right of repurchase on behalf of Halozyme that will expire within 60 days after March 1, 2005. See footnote 2 above. |
(11) | Includes 515,942 shares subject to options that may be exercised within 60 days after March 1, 2005, of which 257,413 of these shares are subject to a right of repurchase on behalf of Halozyme that will expire within 60 days after March 1, 2005. See footnote 2 above. |
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(12) | Includes 206,590 shares subject to warrants and options that may be exercised within 60 days after March 1, 2005, as well as 232,830 shares held in the name of the John S. & Jamie S. Patton TTEES F/T Patton Revocable Trust DTD 7/2/97. |
(13) | Includes 415,942 shares subject to options that may be exercised within 60 days after March 1, 2005, of which 298,601 of these shares are subject to a right of repurchase on behalf of Halozyme that will expire within 60 days after March 1, 2005. See footnote 2 above. |
(14) | Includes 120,833 shares subject to options that may be exercised within 60 days after March 1, 2005. |
(15) | Includes 120,833 shares subject to options that may be exercised within 60 days after March 1, 2005. |
(16) | Includes 5,217,515 shares subject to warrants and options that may be exercised within 60 days after March 1, 2005 beneficially owned by all executive officers and directors, of which 2,600,414 of these shares would not be vested within 60 days after March 1, 2005, and thus would be subject to repurchase by Halozyme during that period. |
Long Term | |||||||||||||||||||||||||
Compensation | |||||||||||||||||||||||||
Awards | |||||||||||||||||||||||||
Annual Compensation | |||||||||||||||||||||||||
Shares | |||||||||||||||||||||||||
Other Annual | Underlying | All Other | |||||||||||||||||||||||
Name and Principal Position | Year | Salary | Bonus | Compensation | Options | Compensation | |||||||||||||||||||
Jonathan E. Lim(1) | 2004 | $ | 158,085 | $ | — | $ | — | 303,422 | $ | — | |||||||||||||||
President and Chief Executive Officer | 2003 | $ | 66,667 | $ | — | $ | — | 2,471,201 | $ | — | |||||||||||||||
Gregory I. Frost | 2004 | $ | 153,390 | $ | — | $ | — | 111,753 | $ | — | |||||||||||||||
Chief Scientific Officer | 2003 | $ | 92,500 | $ | — | $ | — | 1,235,601 | $ | — | |||||||||||||||
David A. Ramsay(2) | 2004 | $ | 138,935 | $ | — | $ | — | 96,745 | $ | — | |||||||||||||||
Chief Financial Officer | 2003 | $ | 12,240 | $ | — | $ | — | 741,360 | $ | — | |||||||||||||||
Mark Wilson(3) | 2004 | $ | 120,225 | $ | — | $ | — | 75,067 | $ | — | |||||||||||||||
Vice President, Business Development | 2003 | $ | 36,674 | $ | — | $ | — | 494,240 | $ | — | |||||||||||||||
Carolyn Rynard(4) | 2004 | $ | 120,225 | $ | — | $ | — | 75,067 | $ | — | |||||||||||||||
Vice President, Product Development | 2003 | $ | 17,660 | $ | — | $ | — | 494,240 | $ | — | |||||||||||||||
and Manufacturing |
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(1) | Dr. Lim joined Halozyme in May 2003 as President and Chief Executive Officer. |
(2) | Mr. Ramsay joined Halozyme in November 2003 as Chief Financial Officer. |
(3) | Mr. Wilson joined Halozyme in June 2003 as Vice President, Business Development. |
(4) | Ms. Rynard joined Halozyme in October 2003 as Vice President, Product Development and Manufacturing. |
Individual Grants | ||||||||||||||||||||||||
Potential Realized Value | ||||||||||||||||||||||||
% of Total | at Assumed Annual Rates | |||||||||||||||||||||||
Number of | Options | of Stock Price | ||||||||||||||||||||||
Shares | Granted to | Appreciation for Option | ||||||||||||||||||||||
Underlying | Employees | Exercise | Term(1) | |||||||||||||||||||||
Options | in Fiscal | Price per | Expiration | |||||||||||||||||||||
Name | Granted | Year | Share(2) | Date | 5% | 10% | ||||||||||||||||||
Jonathan E. Lim | 250,000 | (3) | 11.11 | % | $ | 2.05 | 10/13/14 | $ | 322,308 | $ | 816,793 | |||||||||||||
53,422 | (5) | 2.38 | % | $ | 2.02 | 12/08/14 | $ | 67,866 | $ | 171,985 | ||||||||||||||
Gregory I. Frost | 60,000 | (4) | 2.67 | % | $ | 2.05 | 10/13/14 | $ | 77,354 | $ | 196,030 | |||||||||||||
51,753 | (5) | 2.30 | % | $ | 2.02 | 12/08/14 | $ | 65,745 | $ | 166,612 | ||||||||||||||
David A. Ramsay | 50,000 | (4) | 2.22 | % | $ | 2.05 | 10/13/14 | $ | 64,462 | $ | 163,359 | |||||||||||||
46,745 | (5) | 2.08 | % | $ | 2.02 | 12/08/14 | $ | 59,383 | $ | 150,489 | ||||||||||||||
Mark Wilson | 35,000 | (4) | 1.56 | % | $ | 2.05 | 10/13/14 | $ | 45,123 | $ | 114,351 | |||||||||||||
40,067 | (5) | 1.78 | % | $ | 2.02 | 12/08/14 | $ | 50,900 | $ | 128,990 | ||||||||||||||
Carolyn Rynard | 35,000 | (4) | 1.56 | % | $ | 2.05 | 10/13/14 | $ | 45,123 | $ | 114,351 | |||||||||||||
40,067 | (5) | 1.78 | % | $ | 2.02 | 12/08/14 | $ | 50,900 | $ | 128,990 |
(1) | Potential gains are net of exercise price, but before taxes associated with the exercise. These amounts represent certain hypothetical gains based on assumed rates of appreciation, based on SEC rules, and do not represent Halozyme’s estimate or projection of future prices of Halozyme Common Stock. Actual gains, if any, on stock option exercises are dependent on Halozyme’s future performance, overall market conditions and the optionees’ continued employment through the vesting period. Accordingly, the gains reflected in this table may not be achieved. |
(2) | All options were granted at market value on the date of grant. |
(3) | 5% of this option vests monthly beginning February 1, 2007 until January 1, 2008, then 3.33% of the option vests monthly thereafter for each month of Dr. Lim’s continuous employment with Halozyme. |
(4) | 8.33% of these options vest on February 1, 2008, with 8.33% of the shares vesting monthly thereafter for each month of the optionee’s continuous employment with Halozyme. |
(5) | 50% of these options vested on December 8, 2004, with 1/96 of the shares vesting monthly thereafter for each month of the optionee’s continuous employment with Halozyme. |
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Number of Shares | Value of Unexercised | |||||||||||||||||||||||
Shares | Underlying Unexercised Options | In-the-Money Options at Fiscal | ||||||||||||||||||||||
Acquired | at Fiscal Year End | Year End(1) | ||||||||||||||||||||||
on | Value | |||||||||||||||||||||||
Name | Exercise | Realized | Exercisable(2) | Unexercisable | Exercisable(2) | Unexercisable | ||||||||||||||||||
Jonathan E. Lim | — | $ | — | 1,005,902 | 1,512,311 | $ | 1,777,144 | $ | 2,278,744 | |||||||||||||||
Gregory I. Frost | — | $ | — | 508,405 | 838,949 | $ | 858,734 | $ | 1,346,595 | |||||||||||||||
David A. Ramsay | 256,410 | $ | 220,512 | 23,372 | 558,323 | $ | 4,207 | $ | 889,467 | |||||||||||||||
Mark Wilson | — | $ | — | 205,373 | 363,934 | $ | 339,071 | $ | 567,965 | |||||||||||||||
Carolyn Rynard | — | $ | — | 164,186 | 405,121 | $ | 264,523 | $ | 642,514 |
(1) | Based on a market value of $2.20 per share, the closing price of our Common Stock on December 31, 2004, as reported by the American Stock Exchange. |
(2) | Stock options granted under the 2001 Stock Plan are generally immediately exercisable at the date of grant, but any shares received upon exercise of unvested options are subject to repurchase by Halozyme. Options granted under the 2004 Stock Plan typically vest and become exercisable1/4 after one year and an additional1/48 per month thereafter. |
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Number of Shares | |||||||||||||
Remaining Available | |||||||||||||
for Future Issuance | |||||||||||||
Number of Shares to | under Equity | ||||||||||||
Be Issued upon | Weighted-Average | Compensation Plans | |||||||||||
Exercise of | Exercise Price of | (Excluding Shares | |||||||||||
Outstanding Options, | Outstanding Options, | Reflected in | |||||||||||
Warrants and Rights | Warrants and Rights | Column(a)) | |||||||||||
Plan Category | (a) | (b) | (c) | ||||||||||
Equity compensation plans approved by stockholders(1) | 6,405,397 | $ | 0.39 | — | |||||||||
Equity compensation plans not approved by stockholders(2) | 2,295,000 | $ | 2.41 | 661,783 | |||||||||
Total | 8,700,397 | $ | 0.91 | 661,783 |
(1) | Represents stock options under the 2001 Stock Plan that were assumed by Halozyme as part of the March 2004 merger between DeliaTroph Pharmaceuticals, Inc. and Global Yacht Services, Inc. The 2001 Stock Plan was approved by the shareholders of DeliaTroph prior to the merger and the former shareholders of DeliaTroph held approximately 90% of the voting stock of Halozyme immediately following the merger. No additional options will be granted under the 2001 Stock Plan and all future options will be granted out of the 2004 Stock Plan. The material features of the 2001 Stock Plan are described below. |
(2) | Represents the Halozyme 2004 Stock Plan as well as the grant by Halozyme to a non-executive employee of an option to purchase 125,000 shares of Common Stock at an exercise price of $1.25 per share through a nonstatutory stock option that is not under either the 2001 Stock Plan or the 2004 Stock Plan. This option has a ten year term and vests at the rate of1/4 of the shares on the first anniversary of the employee’s date of hire and1/48 of the shares monthly thereafter. The material features of the 2004 Stock Plan are described below. |
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(i) On May 21, 2004, the Board of Directors granted stock options to independent director Robert L. Engler. This transaction was not reported on Form 4 within the two-day reporting requirement enacted under the Sarbanes-Oxley Act of 2002, but the transaction was reported on a Form 5 on February 8, 2005; | |
(ii) On October 13, 2004, the Board of Directors granted stock options to independent directors Robert L. Engler, Kenneth J. Kelley and John S. Patton as well as to executive officers Jonathan E. Lim, Gregory I. Frost, David A. Ramsay, Carolyn Rynard, Don Kennard and Mark Wilson. These transactions were not reported on Form 4’s within the two-day reporting requirement enacted under the Sarbanes-Oxley Act of 2002, but the transactions were reported on Form 5’s on February 8, 2005; and | |
(iii) On December 8, 2004, the Board of Directors granted stock options to executive officers Jonathan E. Lim, Gregory I. Frost, David A. Ramsay, Carolyn Rynard, Don Kennard and Mark Wilson. These transactions were not reported on Form 4’s within the two-day reporting requirement enacted under the Sarbanes-Oxley Act of 2002, but the transactions were reported on Form 5’s on February 8, 2005. |
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AUDIT COMMITTEE | |
Kenneth J. Kelley (Chairman) | |
Robert L. Engler | |
John S. Patton |
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David A. Ramsay | |
Chief Financial Officer and Secretary |
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1. | STATEMENT OF POLICY |
2. | ORGANIZATION AND MEMBERSHIP REQUIREMENTS |
3. | MEETINGS |
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4. | COMMITTEE AUTHORITY AND RESPONSIBILITY |
a. Nominating Functions |
b. Corporate Governance Functions |
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1. | STATEMENT OF POLICY |
2. | ORGANIZATION AND MEMBERSHIP REQUIREMENTS |
• | has participated in the preparation of the financial statements of the Company or any current subsidiary at any time during the past three (3) years; or | |
• | accepts any consulting, advisory, or other compensatory fee, directly or indirectly, from the Company, other than in his or her capacity as a member of the Committee, the Board, or any other committee of the Board; or | |
• | is an affiliate of the Company or any subsidiary of the Company, other than a director who meets the independence requirements of the Listing Standards. |
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3. | MEETINGS |
4. | COMMITTEE AUTHORITY AND RESPONSIBILITIES |
a. Oversight of the Company’s Independent Auditor |
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b. Review of Financial Reporting, Policies and Processes |
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c. Risk Management, Related Party Transactions, Legal Compliance and Ethics |
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1. | Establishment, Purpose and Term of Plan. |
2. | Definitions and Construction. |
i. “Award”means an Option or Stock Purchase Right granted under the Plan. | |
ii. “Board”means the Board of Directors of the Company. If one or more Committees have been appointed by the Board to administer the Plan,“Board” also means such Committee(s). | |
iii. “Code”means the Internal Revenue Code of 1986, as amended, and any applicable regulations promulgated thereunder. | |
iv. “Committee”means the compensation committee or other committee of the Board duly appointed to administer the Plan and having such powers as shall be specified by the Board. Unless the powers of the Committee have been specifically limited, the Committee shall have all of the powers of the Board granted herein, including, without limitation, the power to amend or terminate the Plan at any time, subject to the terms of the Plan and any applicable limitations imposed by law. | |
v. “Company”means Halozyme Therapeutics, Inc., a Nevada corporation, or any successor corporation thereto. | |
vi. “Consultant”means a person engaged to provide consulting or advisory services (other than as an Employee or a Director) to a Participating Company, provided that the identity of such person, the nature of such services or the entity to which such services are provided would not preclude the Company from offering or selling securities to such person pursuant to the Plan in reliance on either the exemption from registration provided by Rule 701 under the Securities Act or, if the Company is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act, registration on a Form S-8 Registration Statement under the Securities Act. | |
vii. “Director”means a member of the Board or of the board of directors of any other Participating Company. |
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viii. “Disability”means the inability of the Participant, in the opinion of a qualified physician acceptable to the Company, to perform the major duties of the Participant’s position with the Participating Company Group because of the sickness or injury of the Participant. | |
ix. “Employee”means any person treated as an employee (including an Officer or a Director who is also treated as an employee) in the records of a Participating Company and, with respect to any Incentive Stock Option granted to such person, who is an employee for purposes of Section 422 of the Code; provided, however, that neither service as a Director nor payment of a director’s fee shall be sufficient to constitute employment for purposes of the Plan. The Company shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be an Employee and the effective date of such individual’s employment or termination of employment, as the case may be. For purposes of an individual’s rights, if any, under the Plan as of the time of the Company’s determination, all such determinations by the Company shall be final, binding and conclusive, notwithstanding that the Company or any court of law or governmental agency subsequently makes a contrary determination. | |
x. “Exchange Act”means the Securities Exchange Act of 1934, as amended. | |
xi. “Fair Market Value”means, as of any date, the value of a share of Stock or other property as determined by the Board, in its discretion, or by the Company, in its discretion, if such determination is expressly allocated to the Company herein, subject to the following: |
(a) If, on such date, the Stock is listed on a national or regional securities exchange or market system, the Fair Market Value of a share of Stock shall be the closing price of a share of Stock (or the mean of the closing bid and asked prices of a share of Stock if the Stock is so quoted instead) as quoted on the Nasdaq National Market, The Nasdaq SmallCap Market or such other national or regional securities exchange or market system constituting the primary market for the Stock, as reported inThe Wall Street Journal or such other source as the Company deems reliable. If the relevant date does not fall on a day on which the Stock has traded on such securities exchange or market system, the date on which the Fair Market Value shall be established shall be the last day on which the Stock was so traded prior to the relevant date, or such other appropriate day as shall be determined by the Board, in its discretion. | |
(b) If, on such date, the Stock is not listed on a national or regional securities exchange or market system, the Fair Market Value of a share of Stock shall be as determined by the Board in good faith without regard to any restriction other than a restriction which, by its terms, will never lapse. |
xii. “Incentive Stock Option”means an Option intended to be (as set forth in the Option Agreement) and which qualifies as an incentive stock option within the meaning of Section 422(b) of the Code. | |
xiii. “Insider”means an Officer, a Director of the Company or other person whose transactions in Stock are subject to Section 16 of the Exchange Act. | |
xiv. “Nonstatutory Stock Option”means an Option not intended to be (as set forth in the Option Agreement) or which does not qualify as an Incentive Stock Option. | |
xv. “Officer”means any person designated by the Board as an officer of the Company. | |
xvi. “Option”means a right granted under Section 6 to purchase Stock pursuant to the terms and conditions of the Plan. An Option may be either an Incentive Stock Option or a Nonstatutory Stock Option. | |
xvii. “Option Agreement”means a written agreement between the Company and a Participant setting forth the terms, conditions and restrictions of the Option granted to the Participant and any shares acquired upon the exercise thereof. An Option Agreement may consist of a form of “Notice of Grant of Stock Option” and a form of “Stock Option Agreement” incorporated therein by reference, or such other form or forms as the Board may approve from time to time. |
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xviii. “Parent Corporation”means any present or future “parent corporation” of the Company, as defined in Section 424(e) of the Code. | |
xix. “Participant”means any eligible person who has been granted one or more Awards. | |
xx. “Participating Company”means the Company or any Parent Corporation or Subsidiary Corporation. | |
xxi. “Participating Company Group”means, at any point in time, all corporations collectively which are then Participating Companies. | |
xxii. “Prior Plan Options”means any option granted by the Company which is subject to vesting or repurchase by the Company, including specifically, all such options granted pursuant to the Deliatroph Pharmaceuticals, Inc. (dba Hyalozyme Therapeutics, Inc.) Amended and Restated 2001 Stock Plan which is outstanding on or after the Effective Date. | |
xxiii. “Rule 16b-3”means Rule 16b-3 under the Exchange Act, as amended from time to time, or any successor rule or regulation. | |
xxiv. “Securities Act”means the Securities Act of 1933, as amended. | |
xxv. “Service”means a Participant’s employment or service with the Participating Company Group, whether in the capacity of an Employee, a Director or a Consultant. A Participant’s Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant renders Service to the Participating Company Group or a change in the Participating Company for which the Participant renders such Service, provided that there is no interruption or termination of the Participant’s Service. Furthermore, a Participant’s Service shall not be deemed to have terminated if the Participant takes any military leave, sick leave, or other bona fide leave of absence approved by the Company; provided, however, that if any such leave exceeds ninety (90) days, on the one hundred eighty-first (181st) day following the commencement of such leave any Incentive Stock Option held by the Participant shall cease to be treated as an Incentive Stock Option and instead shall be treated thereafter as a Nonstatutory Stock Option unless the Participant’s right to return to Service is guaranteed by statute or contract. Notwithstanding the foregoing, unless otherwise designated by the Company or required by law, a leave of absence shall not be treated as Service for purposes of determining vesting under the Participant’s Option Agreement or Stock Purchase Agreement. Except as otherwise provided by the Board, in its discretion, the Participant’s Service shall be deemed to have terminated either upon an actual termination of Service or upon the corporation for which the Participant performs Service ceasing to be a Participating Company. Subject to the foregoing, the Company, in its discretion, shall determine whether the Participant’s Service has terminated and the effective date of and reason for such termination. | |
xxvi. “Stock”means the common stock of the Company, as adjusted from time to time in accordance with Section 4.2. | |
xxvii. “Stock Purchase Agreement”means a written agreement between the Company and a Participant setting forth the terms, conditions and restrictions of the Stock Purchase Right granted to the Participant and any shares acquired upon the exercise thereof. A Stock Purchase Agreement may consist of a form of “Notice of Grant of Stock Purchase Right” and a form of “Stock Purchase Agreement” incorporated therein by reference, or such other form or forms as the Board may approve from time to time. | |
xxviii. “Stock Purchase Right”means a right granted under Section 7 to purchase Stock pursuant to the terms and conditions of the Plan. | |
xxix. “Subsidiary Corporation”means any present or future “subsidiary corporation” of the Company, as defined in Section 424(f) of the Code. | |
xxx. “Ten Percent Shareholder”means a person who, at the time an Award is granted to such person, owns stock possessing more than ten percent (10%) of the total combined voting power (as |
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defined in Section 194.5 of the California Corporations Code) of all classes of stock of a Participating Company within the meaning of Section 422(b)(6) of the Code. |
3. | Administration. |
i. to determine the persons to whom, and the time or times at which, Awards shall be granted and the number of shares of Stock to be subject to each Award; | |
ii. to designate Options as Incentive Stock Options or Nonstatutory Stock Options; | |
iii. to determine the Fair Market Value of shares of Stock or other property; | |
iv. to determine the terms, conditions and restrictions applicable to each Award (which need not be identical) and any shares acquired upon the exercise thereof, including, without limitation, (i) the exercise price of the Award, (ii) the method of payment for shares purchased upon the exercise of the Award, (iii) the method for satisfaction of any tax withholding obligation arising in connection with the Award or such shares, including by the withholding or delivery of shares of stock, (iv) the timing, terms and conditions of the exercisability of the Award or the vesting of any shares acquired upon the exercise thereof, (v) the time of the expiration of the Award, (vi) the effect of the Participant’s termination of Service on any of the foregoing, and (vii) all other terms, conditions and restrictions applicable to the Award or such shares not inconsistent with the terms of the Plan; | |
v. to approve one or more forms of Option Agreement and Stock Purchase Agreement; | |
vi. to amend, modify, extend, cancel or renew any Award or to waive any restrictions or conditions applicable to any Award or any shares acquired upon the exercise thereof; | |
vii. to accelerate, continue, extend or defer the exercisability of any Award or the vesting of any shares acquired upon the exercise thereof, including with respect to the period following a Participant’s termination of Service; | |
viii. to prescribe, amend or rescind rules, guidelines and policies relating to the Plan, or to adopt supplements to, or alternative versions of, the Plan, including, without limitation, as the Board deems |
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necessary or desirable to comply with the laws of, or to accommodate the tax policy or custom of, foreign jurisdictions whose citizens may be granted Awards; and | |
ix. to correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Option Agreement or Stock Purchase Agreement and to make all other determinations and take such other actions with respect to the Plan or any Award as the Board may deem advisable to the extent not inconsistent with the provisions of the Plan or applicable law. |
4. | Shares Subject to Plan. |
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5. | Eligibility and Option Limitations. |
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6. | Terms and Conditions of Options. |
i. Forms of Consideration Authorized. Except as otherwise provided below, payment of the exercise price for the number of shares of Stock being purchased pursuant to any Option shall be made (i) in cash, by check or cash equivalent, (ii) by tender to the Company, or attestation to the ownership, of shares of Stock owned by the Participant having a Fair Market Value not less than the exercise price, (iii) by delivery of a properly executed notice together with irrevocable instructions to a broker providing for the assignment to the Company of the proceeds of a sale or loan with respect to some or all of the shares being acquired upon the exercise of the Option (including, without limitation, through an exercise complying with the provisions of Regulation T as promulgated from time to time by the Board of Governors of the Federal Reserve System) (a“Cashless Exercise”), (iv) by such other consideration as may be approved by the Board from time to time to the extent permitted by applicable law, or (v) by any combination thereof. The Board may at any time or from time to time, by approval of or by amendment to the standard forms of Option Agreement described in Section 8, or by other means, grant Options which do not permit all of the foregoing forms of consideration to be used in payment of the exercise price or which otherwise restrict one or more forms of consideration. | |
ii. Limitations on Forms of Consideration. |
(a) Tender of Stock. Notwithstanding the foregoing, an Option may not be exercised by tender to the Company, or attestation to the ownership, of shares of Stock to the extent such tender or |
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attestation would constitute a violation of the provisions of any law, regulation or agreement restricting the redemption of the Company’s stock. Unless otherwise provided by the Board, an Option may not be exercised by tender to the Company, or attestation to the ownership, of shares of Stock unless such shares either have been owned by the Participant for more than six (6) months (and were not used for another Option exercise by attestation during such period) or were not acquired, directly or indirectly, from the Company. | |
(b) Cashless Exercise. The Company reserves, at any and all times, the right, in the Company’s sole and absolute discretion, to establish, decline to approve or terminate any program or procedures for the exercise of Options by means of a Cashless Exercise. |
i. Option Exercisability.Subject to earlier termination of the Option as otherwise provided herein and unless otherwise provided by the Board in the grant of an Option and set forth in the Option Agreement, an Option shall be exercisable after a Participant’s termination of Service only during the applicable time period determined in accordance with this Section 6.4 and thereafter shall terminate: |
(a) Disability. If the Participant’s Service terminates because of the Disability of the Participant, the Option, to the extent unexercised and exercisable on the date on which the Participant’s Service terminated, may be exercised by the Participant (or the Participant’s guardian or legal representative) at any time prior to the expiration of twelve (12) months (or such longer period of time as determined by the Board, in its discretion) after the date on which the Participant’s Service terminated, but in any event no later than the date of expiration of the Option’s term as set forth in the Option Agreement evidencing such Option (the“Option Expiration Date”). | |
(b) Death. If the Participant’s Service terminates because of the death of the Participant, the Option, to the extent unexercised and exercisable on the date on which the Participant’s Service terminated, may be exercised by the Participant’s legal representative or other person who acquired the right to exercise the Option by reason of the Participant’s death at any time prior to the expiration of twelve (12) months (or such longer period of time as determined by the Board, in its discretion) after the date on which the Participant’s Service terminated, but in any event no later than the Option Expiration Date. The Participant’s Service shall be deemed to have terminated on account of death if the Participant dies within three (3) months (or such longer period of time as determined by the Board, in its discretion) after the Participant’s termination of Service. | |
(c) Termination for Cause. Notwithstanding any other provision of the Plan to the contrary, if the Participant’s Service with the Participating Company Group is terminated for Cause, as defined by the Participant’s Option Agreement or contract of employment or service (or, if not defined in any of the foregoing, as defined below), the Option shall terminate and cease to be exercisable immediately upon such termination of Service. Unless otherwise defined by the Participant’s Option Agreement or contract of employment or service, for purposes of this Section 6.4(a)(iii)“Cause”shall mean any of the following: (1) the Participant’s theft, dishonesty, or falsification of any Participating Company documents or records; (2) the Participant’s improper use or disclosure of a Participating Company’s confidential or proprietary information; (3) any action by the Participant which has a material detrimental effect on a Participating Company’s reputation or business; (4) the Participant’s failure or inability to perform any reasonable assigned duties after written notice from a Participating Company of, and a reasonable opportunity to cure, such failure or inability; (5) any material breach by the Participant of any employment or service agreement between the Participant and a Participating Company, which breach is not cured pursuant to the terms of such agreement; or (6) the Participant’s conviction (including any plea of guilty or nolo contendere) of any criminal act which impairs the Participant’s ability to perform his or her duties with a Participating Company. | |
(d) Other Termination of Service. If the Participant’s Service terminates for any reason, except Disability, death or Cause, the Option, to the extent unexercised and exercisable by the Participant on the date on which the Participant’s Service terminated, may be exercised by the |
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Participant at any time prior to the expiration of three (3) months (or such longer period of time as determined by the Board, in its discretion) after the date on which the Participant’s Service terminated, but in any event no later than the Option Expiration Date. |
ii. Extension if Exercise Prevented by Law.Notwithstanding the foregoing other than termination for Cause, if the exercise of an Option within the applicable time periods set forth in Section 6.4(a) is prevented by the provisions of Section 11 below, the Option shall remain exercisable until three (3) months (or such longer period of time as determined by the Board, in its discretion) after the date the Participant is notified by the Company that the Option is exercisable, but in any event no later than the Option Expiration Date. | |
iii. Extension if Participant Subject to Section 16(b). Notwithstanding the foregoing other than termination for Cause, if a sale within the applicable time periods set forth in Section 6.4(a) of shares acquired upon the exercise of the Option would subject the Participant to suit under Section 16(b) of the Exchange Act, the Option shall remain exercisable until the earliest to occur of (i) the tenth (10th) day following the date on which a sale of such shares by the Participant would no longer be subject to such suit, (ii) the one hundred and ninetieth (190th) day after the Participant’s termination of Service, or (iii) the Option Expiration Date. |
7. | Terms and Conditions of Stock Purchase Rights. |
a. Purchase Price.The purchase price under each Stock Purchase Right shall be established by the Board; provided, however, that (a) the purchase price per share shall be at least eighty-five percent (85%) of the Fair Market Value of a share of Stock either on the effective date of grant of the Stock Purchase Right or on the date on which the purchase is consummated and (b) the purchase price per share under a Stock Purchase Right granted to a Ten Percent Shareholder shall be at least one hundred percent (100%) of the Fair Market Value of a share of Stock either on the effective date of grant of the Stock Purchase Right or on the date on which the purchase is consummated. | |
b. Purchase Period.A Stock Purchase Right shall be exercisable within a period established by the Board, which shall in no event exceed thirty (30) days from the effective date of the grant of the Stock Purchase Right. | |
c. Payment of Purchase Price. Except as otherwise provided below, payment of the purchase price for the number of shares of Stock being purchased pursuant to any Stock Purchase Right shall be made (a) in cash, by check, or cash equivalent, (b) in the form of the Participant’s past service rendered to a Participating Company or for its benefit having a value not less than the aggregate purchase price of the shares being acquired, (c) by such other consideration as may be approved by the Board from time to time to the extent permitted by applicable law, or (d) by any combination thereof. The Board may at any time or from time to time, by adoption of or by amendment to the standard form of Stock Purchase |
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Agreement described in Section 8, or by other means, grant Stock Purchase Rights which do not permit all of the foregoing forms of consideration to be used in payment of the purchase price or which otherwise restrict one or more forms of consideration. | |
d. Vesting and Restrictions on Transfer. Shares issued pursuant to any Stock Purchase Right may or may not be made subject to vesting conditioned upon the satisfaction of such Service requirements, conditions, restrictions or performance criteria (the“Vesting Conditions”) as shall be established by the Board and set forth in the Stock Purchase Agreement evidencing such Award. During any period (the“Restriction Period”) in which shares acquired pursuant to a Stock Purchase Right remain subject to Vesting Conditions, such shares may not be sold, exchanged, transferred, pledged, assigned or otherwise disposed of other than pursuant to an Ownership Change Event, as defined in Section 9.1, or as provided in Section 7.5. Upon request by the Company, each Participant shall execute any agreement evidencing such transfer restrictions prior to the receipt of shares of Stock hereunder and shall promptly present to the Company any and all certificates representing shares of Stock acquired hereunder for the placement on such certificates of appropriate legends evidencing any such transfer restrictions. | |
e. Effect of Termination of Service. Unless otherwise provided by the Board in the grant of a Stock Purchase Right and set forth in the Stock Purchase Agreement, if a Participant’s Service terminates for any reason, whether voluntary or involuntary (including the Participant’s death or disability), then the Company shall have the option to repurchase for the purchase price paid by the Participant any shares acquired by the Participant pursuant to a Stock Purchase Right which remain subject to Vesting Conditions as of the date of the Participant’s termination of Service; provided, however, that with the exception of shares acquired pursuant to a Stock Purchase Right by an Officer, a Director or a Consultant, the Company’s repurchase option must lapse at the rate of at least twenty percent (20%) of the shares per year over the period of five (5) years from the effective date of grant of the Stock Purchase Right (without regard to the date on which the Stock Purchase Right was exercised) and the repurchase option must be exercised, if at all, for cash or cancellation of purchase money indebtedness for the shares within ninety (90) days following the Participant’s termination of Service. The Company shall have the right to assign at any time any repurchase right it may have, whether or not such right is then exercisable, to one or more persons as may be selected by the Company. | |
f. Nontransferability of Stock Purchase Rights. Rights to acquire shares of Stock pursuant to a Stock Purchase Right may not be assigned or transferred in any manner except by will or the laws of descent and distribution, and, during the lifetime of the Participant, shall be exercisable only by the Participant. |
8. | Standard Forms of Agreements. |
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9. | Change in Control. |
i. An“Ownership Change Event”shall be deemed to have occurred if any of the following occurs with respect to the Company: (i) the direct or indirect sale or exchange in a single or series of related transactions by the shareholders of the Company of more than fifty percent (50%) of the voting stock of the Company; (ii) a merger or consolidation in which the Company is a party; (iii) the sale, exchange, or transfer of all or substantially all of the assets of the Company; or (iv) a liquidation or dissolution of the Company. | |
ii. A“Change in Control”shall mean an Ownership Change Event or a series of related Ownership Change Events (collectively, a“Transaction”) wherein the shareholders of the Company immediately before the Transaction do not retain immediately after the Transaction, in substantially the same proportions as their ownership of shares of the Company’s voting stock immediately before the Transaction, direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the outstanding voting securities of the Company or, in the case of a Transaction described in Section 9.1(a)(iii), the corporation or other business entity to which the assets of the Company were transferred (the“Transferee”), as the case may be. For purposes of the preceding sentence, indirect beneficial ownership shall include, without limitation, an interest resulting from ownership of the voting securities of one or more corporations or other business entities which own the Company or the Transferee, as the case may be, either directly or through one or more subsidiary corporations or other business entities. The Board shall have the right to determine whether multiple sales or exchanges of the voting securities of the Company or multiple Ownership Change Events are related, and its determination shall be final, binding and conclusive. |
i. Accelerated Vesting. Notwithstanding any other provision of the Plan to the contrary, the Board, in its sole discretion, may provide in any Award Agreement or, in the event of a Change in Control, may take such actions as it deems appropriate to provide for the acceleration of the exercisability and vesting in connection with such Change in Control of any or all outstanding Options and shares acquired upon the exercise of such Options. | |
ii. Assumption of Options. In the event of a Change in Control, the surviving, continuing, successor, or purchasing corporation or other business entity or parent thereof, as the case may be (the“Acquiror”), may, without the consent of any Participant, either assume the Company’s rights and obligations under outstanding Options or substitute for outstanding Options substantially equivalent options for the Acquiror’s stock. In the event that the Acquiror elects not to assume or substitute for outstanding Options in connection with a Change in Control, the exercisability and vesting of each such outstanding Option held by a Participant whose Service has not terminated prior to such date shall be accelerated, effective as of the date ten (10) days prior to the date of the Change in Control. Any Options which are neither assumed by the Acquiror in connection with the Change in Control nor exercised as of the date of the Change in Control shall terminate and cease to be outstanding effective as of the date of the Change in Control. Notwithstanding the foregoing, shares acquired upon exercise of an Option prior to the Change in Control and any consideration received pursuant to the Change in Control with respect to such shares shall continue to be subject to all applicable provisions of the Award Agreement evidencing such Option except as otherwise provided in such Award Agreement. Furthermore, notwithstanding the foregoing, if the corporation the stock of which is subject to the outstanding Options immediately prior to an Ownership Change Event described in Section 9.1(a)(i) constituting a Change in Control is the surviving or continuing corporation and immediately after such Ownership Change Event less than fifty percent (50%) of the total combined voting power of its voting stock is held by another corporation or by other corporations that are members of an affiliated group within the meaning of Section 1504(a) of the Code without regard to the provisions of Section 1504(b) of the Code, the outstanding Options shall not terminate unless the Board otherwise provides in its discretion. |
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iii. Cash-Out of Options. The Board may, in its sole discretion and without the consent of any Participant, determine that, upon the occurrence of a Change in Control, each or any Option outstanding immediately prior to the Change in Control shall be canceled in exchange for a payment with respect to each vested share of Stock subject to such canceled Option in (i) cash, (ii) stock of the Company or of a corporation or other business entity a party to the Change in Control, or (iii) other property which, in any such case, shall be in an amount having a Fair Market Value equal to the Fair Market Value of the consideration to be paid per share of Stock in the Change in Control over the exercise price per share under such Option (the“Spread”). In the event such determination is made by the Board, the Spread (reduced by applicable withholding taxes, if any) shall be paid to Participants in respect of their canceled Options as soon as practicable following the date of the Change in Control. |
i. Excess Parachute Payment. In the event that any acceleration of vesting pursuant to an Award and any other payment or benefit received or to be received by a Participant would subject the Participant to any excise tax pursuant to Section 4999 of the Code due to the characterization of such acceleration of vesting, payment or benefit as an “excess parachute payment” under Section 280G of the Code, the Participant may elect, in his or her sole discretion, to reduce the amount of any acceleration of vesting called for under the Award in order to avoid such characterization. | |
ii. Determination by Independent Accountants. To aid the Participant in making any election called for under Section 9.4(a), no later than the date of the occurrence of any event that might reasonably be anticipated to result in an “excess parachute payment” to the Participant as described in Section 9.4(a), the Company shall request a determination in writing by independent public accountants selected by the Company (the“Accountants”). As soon as practicable thereafter, the Accountants shall determine and report to the Company and the Participant the amount of such acceleration of vesting, payments and benefits which would produce the greatest after-tax benefit to the Participant. For the purposes of such determination, the Accountants may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Participant shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make their required determination. The Company shall bear all fees and expenses the Accountants may reasonably charge in connection with their services contemplated by this Section 9.4(b). |
10. | Tax Withholding. |
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11. | Compliance with Securities Law. |
12. | Termination or Amendment of Plan. |
13. | Miscellaneous Provisions. |
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HALOZYME THERAPEUTICS, INC.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
FOR THE ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON APRIL 21, 2005
The undersigned hereby appoints Jonathan E. Lim and David A. Ramsay, and each of them, as attorneys and proxies of the undersigned, with full power of substitution, to vote all of the shares of stock of Halozyme Therapeutics, Inc. (the “Company”) which the undersigned may be entitled to vote at the Annual Meeting of Stockholders of the Company to be held at the San Diego Marriott Hotel, 11966 El Camino Real, San Diego 92130, on Thursday, April 21, 2005, at 10:00 a.m. local time and at any and all adjournments or postponements thereof, with all powers that the undersigned would possess if personally present, upon and in respect of the following matters and in accordance with the following instructions, with discretionary authority as to any and all other matters that may properly come before the meeting.
The shares represented by this proxy card will be voted as directed or, if this card contains no specific voting instructions, these shares will be voted in accordance with the recommendations of the Board of Directors.
YOUR VOTE IS IMPORTANT. You are urged to complete, sign, date and promptly return the accompanying proxy in the enclosed envelope, which is postage prepaid if mailed in the United States.
(CONTINUED AND TO BE SIGNED ON REVERSE SIDE.)
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TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:þ
Whether or not you plan to attend the meeting in person, you are urged to sign and promptly mail
this proxy in the return envelope so that your stock may be represented at the meeting.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” ALL PROPOSALS:
For All | Withhold All | Exceptions | ||||||
o | o | o | ||||||
1. | To elect Kenneth J. Kelley and Jonathan E. Lim as Class I Directors, to hold office until the 2008 Annual Meeting of Stockholders. | |||||||
To elect John S. Patton as a Class II Director, to hold office until the 2006 Annual Meeting of Stockholders. | ||||||||
To elect Robert L. Engler and Gregory I. Frost as Class III Directors, to hold office until the 2007 Annual Meeting of Stockholders. |
(Instruction: To withhold authority to vote for any individual nominee, mark the “Exceptions” box above and write the name of the nominee(s) that you do not wish to vote for on the line(s) below the “Exemptions” box.)
For | Against | Abstain | For | Against | Abstain | |||||||||||||
2. | To approve our 2004 Stock Plan and to reserve an aggregate of 10,000,000 shares of our Common Stock for issuance under our existing 2001 Stock Plan and the 2004 Stock Plan. | o | o | o | 3. | To ratify the appointment of Cacciamatta Accountancy Corporation as our independent auditors for the fiscal year ending December 31, 2005. | o | o | o |
Please sign below, exactly as name or names appear on this proxy. If the stock is registered in the names of two or more persons (Joint Holders), each should sign. When signing as attorney, executor, administrator, trustee, custodian, guardian or corporate officer, give printed name and full title. If more than one trustee, all should sign.
Stockholder Signature | Date | Joint Holder Signature (if applicable) | Date |
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