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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section
14(a) of the
Securities Exchange Act of 1934 (Amendment No. )
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Definitive Proxy Statement |
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Soliciting Material Under § 240.14a-12 |
BioMarin Pharmaceutical Inc.
(Name of Registrant as Specified In Its
Charter)
(Name of Person(s) Filing Proxy
Statement, if Other Than the Registrant)
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Annual Meeting: June 6, 2017, 9:00 a.m. Pacific
Time |
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BioMarin Seminar Room 770 Lindaro Street San Rafael, CA
94901 |
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770 Lindaro Street, |
San Rafael, CA
94901 |
Notice of Annual
Meeting of Stockholders |
TIME AND
DATE
9:00 a.m. (Pacific Time), June 6,
2017
LOCATION
BioMarin,
Seminar Room, 770 Lindaro Street, San Rafael, CA 94901
Dear Stockholder of BioMarin:
You are cordially invited to attend the
Annual Meeting of the Stockholders (the Annual Meeting) of BioMarin
Pharmaceutical Inc., a Delaware corporation (we, us, BioMarin or the Company).
The Annual Meeting will be held on Tuesday, June 6, 2017 at 9:00 a.m. (Pacific
Time), at the Companys offices in the Seminar Room, 770 Lindaro Street, San
Rafael, CA 94901 for the following purposes:
ITEMS OF
BUSINESS
1. |
To elect the nine nominees for director named in the
proxy statement accompanying this Notice of Annual Meeting of Stockholders
(the Proxy Statement) to serve until the next Annual Meeting and until
their successors are duly elected and qualified; |
2. |
To ratify the selection of KPMG LLP as the independent
registered public accounting firm for BioMarin for the fiscal year ending
December 31, 2017; |
3. |
To approve, on an advisory basis, the frequency of the
stockholders approval, on an advisory basis, of the compensation of the
Companys Named Executive Officers as disclosed in the Proxy
Statement; |
4. |
To approve, on an advisory basis, the compensation of
the Companys Named Executive Officers as disclosed in the Proxy
Statement; |
5. |
To approve the 2017 Equity Incentive Plan; |
6. |
To approve amendments to BioMarins Amended and Restated
Certificate of Incorporation, as amended, to (i) increase the total number
of authorized shares of common stock from 250,000,000 shares to
500,000,000 shares, and (ii) make certain minor administrative changes;
and |
7. |
To conduct any other business
properly brought before the Annual Meeting. |
These items of business are more fully described in the Proxy Statement.
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VOTING Whether or
not you expect to attend the Annual Meeting, please vote in advance of the
meeting using one of the following methods. |
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TELEPHONE Call
toll-free 1-866-690-6903.
INTERNET Vote
online at www.proxyvote.com.
MAIL Follow the
instructions in your proxy materials.
Important Notice Regarding the
Availability of Proxy Materials for the
Annual Meeting to be held on June 6, 2017 at 9:00 a.m. at the Companys
offices in the Seminar Room, 770 Lindaro Street, San Rafael, CA
94901
The Proxy Statement and annual
report to stockholders are available at: www.proxyvote.com.
If you have any questions or need
assistance in voting your shares, please call the following firm, which is
assisting the Company in the solicitation of proxies:
Morrow Sodali LLC 470 West
Avenue Stamford, CT 06902 1-800-662-5200 |
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RECORD
DATE
Monday, April 10, 2017
Only stockholders of record at the close
of business on the Record Date may vote at the Annual Meeting or any adjournment
thereof. A complete list of such stockholders will be available for examination
by any stockholder for any purpose germane to the Annual Meeting during ordinary
business hours at the Companys principal executive offices for a period of 10
days before the Annual Meeting.
By Order of the Board of Directors
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G. Eric Davis |
Executive Vice President, General
Counsel and Secretary |
San Rafael, California |
April 25,
2017 |
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04 |
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2017 Proxy
Statement |
Table of Contents
This overview highlights certain
information contained elsewhere in this proxy statement and does not contain all
of the information that you should consider. You should read the entire proxy
statement carefully before voting. For more complete information regarding our
business and 2016 performance, please review our Annual Report on Form 10-K for
the year ended December 31, 2016 as filed with the Securities and Exchange
Commission (the SEC) on February 27, 2017.
Meeting and Voting
Information
Time and
Date:
9:00 a.m. (Pacific Time), June 6,
2017
Place:
BioMarin, Seminar
Room, 770 Lindaro Street, San Rafael, CA 94901
You are cordially invited to
attend the meeting in person. Whether or not you expect to attend the meeting,
please vote as soon as possible. Please see Questions and Answers about These
Proxy Materials and VotingHow Do I Vote? beginning on page 94
below.
We intend to mail a Notice Regarding the
Availability of Proxy Materials on or about April 25, 2017 to all stockholders
of record entitled to vote at the Annual Meeting. We expect that this Proxy
Statement and the other proxy materials will be available to stockholders on or
about April 25, 2017.
Business
Overview
BioMarin is a global biotechnology company
that develops and commercializes innovative therapies for people with serious
and life-threatening rare diseases and medical conditions. We select product
candidates for diseases and conditions that represent a significant unmet
medical need, have well-understood biology and provide an opportunity to be
first-to-market or offer a significant benefit over existing products. Our
therapy portfolio consists of five products and multiple clinical and
pre-clinical product candidates.
Our commercial products are:
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Aldurazyme (laronidase) for
Mucopolysaccharidosis I (MPS I); |
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Firdapse (amifampridine phosphate)
for Lambert Eaton Myasthenic Syndrome (LEMS); |
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Kuvan (sapropterin dihydrochloride)
for phenylketonuria (PKU); |
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Naglazyme (galsulfase) for
Mucopolysaccharidosis VI (MPS VI); and |
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Vimizim (elosulfase alpha) for
Mucopolysaccharidosis IV Type A (MPS IV A). |
We continue to invest in our clinical and
pre-clinical product pipeline by committing significant resources to research
and development programs and business development
opportunities within our areas of scientific, manufacturing and technical
expertise. We are conducting clinical trials on several product candidates for
the treatment of various diseases.
Our clinical product candidates
include:
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Brineura (formerly referred to as
cerliponase alfa or BMN 190) for the treatment of late infantile neuronal
ceroid lipofuscinosis (CLN2), a form of Batten disease; |
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pegvaliase (formerly referred to as
PEG PAL), an enzyme substitution therapy for the treatment of
PKU; |
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vosoritide (formerly referred to as
BMN 111), a peptide therapeutic for the treatment of achondroplasia, the
leading cause of dwarfism; |
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BMN 270, a Factor VIII gene therapy
drug development candidate, for the treatment of hemophilia A;
and |
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BMN 250, a novel fusion of
alpha-N-acetyglucosaminidase (NAGLU) with a peptide derived from
insulin-like growth factor 2 (IGF2), for the treatment of Sanfilippo B
syndrome, or mucopolysaccharidosis type IIIB (MPS
IIIB). |
We are conducting or planning to conduct
preclinical development of several other product candidates for genetic and
other metabolic diseases.
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2016
Business Highlights
In 2016, we achieved record revenue, with
our commercial business breaking the $1.0 billion mark for the first time, while
we concurrently made important advancements in our pipeline programs.
Our key accomplishments in 2016
included:
REVENUE GROWTH
26%
Achieving 26% growth in total BioMarin revenue
as compared to 2015, from $890 million to $1.12 billion. |
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VIMIZIM SALES
55%
growth
Achieving 55% in revenue growth from Vimizim
sales, earning $354 million in 2016 compared to $228 million in
2015. |
KUVAN
SALES
$348
million
Earning $348 million in
revenue from Kuvan in 2016 compared to $239 million in 2015, following the
transition of the global rights to Kuvan for the treatment of PKU from
Ares Trading, S.A. (Merck Serono), with the exception of Kuvan in
Japan. |
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DEVELOPMENT
PIPELINE
Advancing our product development
pipeline, which includes five clinical compounds for the treatment of
various rare diseases. |
06 |
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2017 Proxy
Statement |
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Board of Directors
Overview
Director
Nominees
The following table provides summary
information about each director nominee and continuing director as of the date
of this Proxy Statement. See pages 15 to 20 for more information.
Name |
Age |
Director Since |
Occupation |
Independent |
Jean-Jacques Bienaimé Chair of the
Board |
63 |
May
2005 |
Chairman & Chief
Executive Officer, BioMarin Pharmaceutical Inc. |
No |
Willard Dere, M.D. |
63 |
July 2016 |
Professor of Internal
Medicine, Executive Director of Personalized Health and Co-Principal
Investigator of the Center for Clinical and Translational Science at the
University of Utah Health Sciences Center |
Yes |
Michael Grey |
64 |
December 2005 |
Executive Chairman, Amplyx
Pharmaceuticals, Inc.; Chief Executive Officer and Chairman, Reneo
Pharmaceuticals, Inc. |
Yes |
Elaine J. Heron, Ph.D. |
69 |
July 2002 |
Director, Amplyx
Pharmaceuticals, Inc. |
Yes |
V.
Bryan Lawlis, Ph.D. |
65 |
June 2007 |
President & Chief
Executive Officer, Itero Biopharmaceuticals, LLC |
Yes |
Alan J. Lewis, Ph.D. |
71 |
June 2005 |
Chief Executive Officer
and director, DiaVacs, Inc. |
Yes |
Richard A. Meier Lead Independent
Director |
57 |
December 2006 |
President-International
and Executive Vice President and Chief Financial Officer, Owens &
Minor, Inc. |
Yes |
David Pyott, M.D. (Hon.) |
63 |
January 2016 |
Lead Director, Avery
Dennison Corporation; Director, Alynlam Pharmaceuticals, Inc.; Supervisory
Board Member, Royal Philips |
Yes |
Dennis J. Slamon, M.D., Ph.D. |
68 |
March 2014 |
Director,
Clinical/Translational Research; Director, Revlon/UCLA Womens Cancer
Research Program at UCLAs Jonsson Comprehensive Cancer Center |
Yes |
Director
Dashboards
We examine the experience and expertise of
our board as a whole to ensure alignment between the abilities and contributions
of our board and our strategic priorities and long-range plan, emphasizing,
among other things, skills and experience in leadership of large, complex
organizations, particularly in related industries;
sales and marketing of biotechnology and pharmaceutical products; manufacturing
of biotechnology and small molecule drug products; research and development of
drug products, including managing and conducting clinical trials and the drug
regulatory approval
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processes; medicine; finance and
accounting; capital markets; business development; legal and intellectual
property; and information technology. All of our directors exhibit high
integrity, sound business judgment, innovative thinking, collegiality and a
knowledge of corporate governance requirements
and practices, and our directors as a whole bring a balance of relevant skills
and experience to our boardroom:
DIRECTOR SKILLS AND
EXPERIENCE
Our board is substantially independent and
has a mix of relatively newer and longer-tenured directors. The charts below
show the makeup of director nominees by various characteristics as of March 17,
2017:
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2017 Proxy
Statement |
Table of Contents
Corporate Governance
Overview
Corporate
Governance Strengths
We are committed to exercising good
corporate governance practices. We believe that good governance promotes the
long-term interests of our stockholders and strengthens board and management
accountability. The highlights of our corporate governance practices include the
following:
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9 out of 10 of our current directors
(8 out of 9 of our nominees for director) are independent |
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Regular executive sessions of
independent directors |
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100% independent committee
members |
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Diverse board in terms of tenure,
experience and skills |
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Annual board and committee
self-evaluations |
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Risk oversight by the full board and
committees |
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Board and committees may engage
outside advisors independently of management |
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Independent compensation consultant
reporting directly to the compensation committee |
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Policy for Recoupment of Incentive
Compensation |
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Lead Independent Director with
clearly delineated duties |
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Corporate Governance
Principles |
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Plurality voting in the election of
directors in uncontested elections, with director resignation
policy |
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Share ownership guidelines for
directors and executive officers helps to align directors and officers
with stockholder interests |
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Strict policy of no pledging or
hedging of Company shares |
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Robust Global Code of Conduct and
Business Ethics |
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Annual advisory approval of
executive compensation |
Stockholder
Engagement
Our stockholders views and opinions on
our executive compensation practices are extremely important to us. As a
steward of
good corporate governance, our Compensation Committee evaluates the design of
our executive compensation program based on market conditions, stockholder
views and
other governance considerations. We regularly engage with our stockholders through open dialogue and direct individual
communication on topics related to the business, financial performance,
corporate governance and compensation. Stockholder feedback is important, and
the information we glean from these engagements is highly valued.
Table of
Contents
Executive
Compensation Highlights
We designed our executive compensation
program to attract, motivate and retain the executive talent necessary to
advance our business of developing and commercializing innovative
biopharmaceuticals for serious diseases and medical conditions and to increase
stockholder value. Our compensation program is aligned with our business
strategy and priorities, encourages executive officers to work for meaningful
stockholder returns and reflects a pay-for-performance philosophy, without
encouraging our executive officers to assume excessive risks or resulting in
excessive pay practices. We achieve our pay objectives by providing short-term cash bonuses tied to our financial and
development goals and by granting long-term equity awards, including
performance-based restricted stock units (RSUs) tied to financial results.
In 2016, we increased the
performance-based equity from 20% to 25% of the total equity grants for our
Named Executive Officers (NEOs). Moreover, our CEO voluntarily forfeited his
right to income tax gross-up payments in connection with a change in control as
provided for in his previous employment agreement.
Our
Executive Compensation Practices
Our executive compensation policies and
practices reinforce our pay-for-performance philosophy and align with sound
governance principles.
What
We Do |
What We Dont
Do |
✓Design executive compensation to align pay with
performance
✓Balance short-term and long-term incentive compensation
to make sure majority of executive compensation is at-risk
✓Independent compensation consultant reporting directly
to the Compensation Committee
✓Stock ownership guidelines for executive officers and
directors
✓Annual say-on-pay vote
✓Prohibition on short sales, transactions in put or call
options, hedging transactions or other inherently speculative transactions
in our stock or engaging in excessive margin activities.
✓Policy on recoupment of incentive
compensation
✓Limited and modest perquisites
✓If the 2017 Equity Incentive Plan is approved, provide
an annual limit on non-employee director compensation |
✗No repricing of underwater stock options without prior
stockholder approval
✗No excessive perquisites
✗No guaranteed bonuses or base salary
increases
✗No tax gross-ups on severance or change in control
benefits |
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2017 Proxy
Statement |
Table of
Contents
Our Fiscal
2016 NEO Pay
The following charts show the breakdown of
reported fiscal 2016 compensation for our Chief Executive Officer, Mr. Bienaimé,
and other NEOs. These charts illustrate the predominance of long-term equity
incentives and performance-based components in our executive compensation
program. We believe these components provide a compensation package that
not only helps to attract and retain qualified
individuals to serve as executive officers but also links individual performance
to Company performance, by focusing the efforts of our NEOs and other executive
officers on the achievement of both our short-term and long-term objectives,
thus aligning the interests of our executive officers with those of our
stockholders.
2016 CEO Compensation
Mix(1) |
Other NEOs Compensation
Mix(1)(2) |
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(1) |
Percentages calculated based on
amounts set forth in the Summary
Compensation Table in this Proxy
Statement, including the Target Payout amounts in footnote (2) to such
table. Percentages rounded to the nearest whole number, and therefore
total may not equal 100%. The amounts under All Other Compensation in
the Summary Compensation
Table in this Proxy Statement are not
represented in the chart because such amounts as a percentage of total compensation round down to
zero. |
(2) |
Percentages calculated based on
sum of all other NEOs compensation. |
Summary of
Stockholder Voting Matters and Board Recommendations
For the reasons set forth below and in the
rest of this proxy statement, our board of directors recommends that you vote
your shares FOR each of the nominees named below for director to hold office until the 2018 Annual Meeting of stockholders, for
1 Year as the preferred frequency of stockholder advisory votes on the
compensation of NEOs and FOR each of the other proposals.
Proposal No. One
Election of Directors |
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The
board of directors recommends a vote FOR each of the
nominees.
Vote
required to elect each nominee: The nine
nominees who receive the most For votes cast by the holders of shares
either present in person or represented by proxy and entitled to vote will
be elected to our Board.
For more
information, see Proposal No. One starting on page
14. |
We are asking our stockholders to
vote For each of the nine nominees for director to serve until the next
Annual Meeting and until their successors are duly elected and qualified.
Detailed information about each nominees background and experience can be
found beginning on page 16.
Each of the nominees for director
was nominated for election by the board of directors upon the
recommendation of our Corporate Governance and Nominating (CGN) Committee.
Our board of directors believes that each nominee has the specific
experience, qualifications, attributes and skills to serve as a member of
the board of directors.
Any director nominee who receives a
greater number of votes withheld for his or her election than votes
for his or her election should promptly tender his or her
resignation. For more information on this policy, see page
14. |
Table
of Contents
Proposal No. Two Ratification of the
Selection of KPMG LLP as the Independent Registered Public Accounting Firm
for BioMarin for the Year Ending December 31, 2017 |
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The board of directors
recommends a vote FOR this proposal.
Vote required for
approval: Affirmative vote of a
majority of the votes cast on the proposal.
For more information, see Proposal
No. Two starting on page 35. |
The Board and the Audit Committee
believe that the continued retention of KPMG to serve as our independent
registered public accounting firm for the fiscal year ending December 31,
2017 is in the best in interest of the Company and its stockholders. As a
matter of good corporate governance, we are asking our stockholders to
ratify the Audit Committees selection of the independent registered
public accounting firm. |
Proposal No. Three Non-Binding Advisory Vote
on the Frequency of Stockholder Approval of Executive
Compensation |
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The board of directors
recommends a vote for 1 Year for this proposal.
Vote required for approval: The option that receives the highest number of votes cast will be
deemed to be the frequency preferred by the stockholders for future
advisory votes on executive compensation.
For more information, see: Proposal
No. Three starting on page 40. |
We are
asking our stockholders to vote to indicate, on an advisory basis, the
preferred frequency of the stockholders approval of the compensation of
the Companys NEOs as disclosed in this Proxy
Statement. |
Proposal No. Four Non-Binding Advisory Vote
on Executive Compensation |
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The board of directors
recommends a vote FOR this proposal.
Vote required for
approval: Affirmative vote of a majority of the votes cast on the
proposal.
For more information, see Proposal
No. Four starting on page 41. |
We are asking our stockholders for
advisory approval of the compensation of our NEOs as disclosed in this
Proxy Statement. Our executive compensation program is aligned with our
business strategy and priorities and encourages executive officers to work
for meaningful stockholder returns consistent with our pay-for-performance
philosophy. We align our executive officers interests with our
stockholders interests by rewarding our executive officers for both
current performance and longer-term performance, with performance measured
both by financial performance and milestones for the advancement of our
long-term development programs and strategic
initiatives. |
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2017 Proxy
Statement |
Table of
Contents
Proposal No. Five
Approval of the 2017 Equity Incentive Plan |
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The board of directors
recommends a vote FOR this proposal.
Vote required for approval:
Affirmative vote of a majority of
the votes cast on the proposal.
For more information, see Proposal
No. Five starting on page 71. |
We are asking our stockholders to
approve the BioMarin Pharmaceutical Inc. 2017 Equity Incentive Plan (the
2017 Plan). The 2017 Plan, pursuant to which 20,880,015 shares would be
reserved for issuance (only 5,250,000 of which are newly reserved shares),
replaces our 2006 Share Incentive Plan (2006 Plan). It contains a number
of features representing corporate governance best practices, including:
●annual limit on non-employee director compensation;
●no repricing without shareholder approval;
●no discounted options;
●restrictions on payment of dividends and dividend equivalents;
●awards subject to our clawback policy;
●no liberal change in control definition or liberal share
recycling provision;
●no requirement for single trigger vesting of awards on a
change-in-control;
●administration by an independent committee; and
●material amendments require shareholder
approval. |
Proposal No. Six
Approval of the Amendments to the Amended and Restated Certificate of
Incorporation, as Amended |
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The board of directors
recommends a vote FOR this proposal.
Vote required for
approval: Affirmative vote of a majority of outstanding shares of our capital
stock.
For more information, see Proposal
No. Six starting on page 84. |
We are asking our stockholders to
approve an amendment to our Amended and Restated Certificate of
Incorporation, as amended (the Charter), to (i) increase the total number
of authorized shares of common stock from 250,000,000 shares to
500,000,000 shares, and (ii) make certain minor administrative changes,
including to remove references that no longer or do not apply and to align
the provision regarding the individuals who may call a special meeting of
stockholders with the provision in our Amended and Restated Bylaws (the
Bylaws).
Although, at present, our Board has
no immediate plans to issue the additional shares of common stock, it
desires to have the shares available to provide additional flexibility to
use BioMarins common stock for business and financial purposes in the
future as well as to have sufficient shares available to provide
appropriate equity incentives for our employees.
If this proposal is not approved by
our stockholders, it is possible that our financing alternatives,
including in connection with satisfying our debt service obligations and
continuing to grow our commercial business and advance our product
pipeline, may be limited by the lack of sufficient unissued and unreserved
authorized shares of common stock, and stockholder value may be harmed,
perhaps severely, by this limitation. In addition, our success depends in
part on our continued ability to attract, retain and motivate highly
qualified management and clinical and scientific personnel, and if this
Proposal Six is not approved by our stockholders, the lack of unissued and
unreserved authorized shares of common stock to provide future equity
incentive opportunities that the Compensation Committee deems appropriate
could adversely impact our ability to achieve these goals. In summary, if
our stockholders do not approve this Proposal Six, we may not be able to
access the capital markets, complete corporate collaborations or
partnerships, attract, retain and motivate employees and pursue other
business opportunities integral to our growth and success, all of which
could severely harm our business and our prospects. Our Board believes
that the proposed increase in authorized common stock will make sufficient
shares available to provide the additional flexibility necessary to pursue
our strategic objectives.
The amendments proposed in this
proposal would also remove from the Charter outdated references that no
longer or do not apply and align the provision regarding the individuals
who may call a special meeting of stockholders with the provision in our
Bylaws. None of these proposed administrative amendments will
substantively affect the rights of
stockholders. |
Table of
Contents
Proposal No. One:
Election of Directors |
The Board currently consists of ten
directors but will be reduced to nine effective at the Annual Meeting. There are
nine nominees for election to the Board this year. Each of the nominees listed
below is currently a director of the Company, and, except for Willard Dere who
was appointed to the Board by the other directors
in July 2016, each was previously elected by the stockholders. Each director
nominee to be elected and qualified will hold office until the next Annual
Meeting of stockholders and until his or her successor is duly elected and
qualified, or, if sooner, until the directors death, resignation or
removal.
Vote
Required
Directors are elected by a plurality of
the votes of the holders of shares present in person or represented by proxy and
entitled to vote on the election of directors. The nine nominees receiving the
highest number of affirmative votes will be elected.
Director
Election Voting Standard and Resignation Policy
Pursuant to our Corporate Governance
Principles (which are available in the Corporate Governance section of the
Investors section of our website at www.bmrn.com), any director nominee
who receives a greater number of votes withheld from his or her election than
votes for his or her election in an uncontested election at a stockholders
meeting should promptly tender his or her
resignation to the Chair of the Board following certification of the stockholder vote.
The CGN Committee will then make a recommendation to the Board regarding the
appropriate response to such an offer of resignation.
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2017 Proxy
Statement |
Table of
Contents
Proposal No.
One: Election of Directors |
Nominees
for Director
The names and ages of the nominees,
occupation(s), length of service with the Company and Board
committee memberships are set forth in the table below. A brief biography of each
nominee is also set forth below, which includes information, as of the date of
this Proxy Statement, regarding specific and particular experience,
qualifications, attributes or skills of each nominee that led the CGN Committee
to believe that the nominee should continue to serve on the Board:
Name and Age |
Director Since |
Occupation |
Independent |
Committee memberships |
AC |
CC |
CGN |
S&T |
Jean-Jacques Bienaimé, 63 Chair of the Board |
May
2005 |
Chairman & Chief Executive Officer,
BioMarin Pharmaceutical Inc. |
No |
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Willard Dere, M.D., 63 |
July 2016 |
Professor of Internal Medicine, Executive Director of
Personalized Health and Co-Principal Investigator of the Center
for Clinical and Translational Science at the University of Utah
Health Sciences Center |
Yes |
|
|
● |
● |
Michael Grey, 64 |
December 2005 |
Executive Chairman, Amplyx Pharmaceuticals, Inc.;
Chief Executive Officer and Chairman, Reneo Pharmaceuticals,
Inc. |
Yes |
|
|
|
● |
Elaine J. Heron, Ph.D., 69 |
July 2002 |
Director, Amplyx Pharmaceuticals, Inc. |
Yes |
● |
|
|
● |
V.
Bryan Lawlis, Ph.D., 65 |
June 2007 |
President & Chief Executive Officer,
Itero Biopharmaceuticals, LLC |
Yes |
● |
|
|
● |
Alan J. Lewis, Ph.D., 71 |
June 2005 |
Chief Executive Officer and director, DiaVacs,
Inc. |
Yes |
|
● |
|
|
Richard A. Meier, 57 Lead
Independent Director
|
December 2006 |
President-International and Executive Vice President
and Chief Financial Officer, Owens & Minor, Inc. |
Yes |
|
|
|
|
David E.I. Pyott, M.D. (Hon.), 63
|
January 2016 |
Lead Director, Avery Dennison Corporation; Director,
Alynlam Pharmaceuticals, Inc.; Supervisory Board Member, Royal
Philips |
Yes |
|
● |
● |
|
Dennis J. Slamon, M.D., Ph.D.,
68 |
March 2014 |
Director,
Clinical/Translational Research; Director, Revlon/ UCLA Womens
Cancer Research Program at UCLAs Jonsson Comprehensive Cancer
Center |
Yes |
|
|
● |
● |
AC |
Audit Committee |
|
●
|
|
Member |
CC |
Compensation Committee |
|
● |
|
Committee Chair |
CGN |
Corporate Governance & Nominating Committee |
|
|
|
Financial Expert |
S&T |
Science & Technology Committee |
|
|
|
|
Table of
Contents
Proposal No. One:
Election of Directors |
DIRECTOR AGE |
DIRECTOR TENURE |
DIRECTOR INDEPENDENCE |
|
|
|
DIRECTOR SKILLS AND
EXPERIENCE
|
JEAN-JACQUES BIENAIMÉ
CHAIRMAN & CHIEF EXECUTIVE OFFICER, BIOMARIN
|
AGE: 63 DIRECTOR
SINCE: MAY
2005
The Board has nominated Mr. Bienaimé for his intimate
knowledge of our business and extensive experience in the management of
biotechnology organizations, business development, and sales and marketing
of both biotechnology and pharmaceutical
products. |
Jean-Jacques Bienaimé joined our Board in
May 2005, the same time that he became our Chief Executive Officer, and was
named Chair of the Board in June 2015. From November 2002 to April 2005, Mr.
Bienaimé served as Chairman, Chief Executive Officer, and President of Genencor,
a biotechnology company focused on industrial bioproducts and targeted cancer
biotherapeutics. From 1998 to late 2002, Mr. Bienaimé served as Chairman, Chief
Executive Officer and President of Sangstat Medical Corporation, an
immunology-focused biotechnology company, becoming President in 1998 and Chief
Executive Officer in 1999. From 1992 to 1998, Mr. Bienaimé held several senior
management positions at Rhône-Poulenc Rorer Pharmaceuticals (now
Sanofi-Aventis), culminating in the position of Senior Vice President of
Worldwide Marketing and Business Development. Earlier in his career, Mr.
Bienaimé worked at Genentech, Inc. where he was involved in the launch of tissue
plasminogen activator (t-PA) for the treatment of heart attacks. Mr. Bienaimé
currently serves on the boards of Incyte Corporation, a public pharmaceutical
company, and Vital Therapies, Inc., a public biotechnology company, as well as
the Health Section Governing Board of The Biotechnology Innovation Organization
(formerly known as The Biotechnology Industry Organization), an industry trade
association. Mr. Bienaimé previously served on the board of directors of two
public companies during the past five years: Portola Pharmaceuticals, Inc. (from
2011 to 2014) and InterMune, Inc. (from 2012 to 2014). Mr. Bienaimé received an
M.B.A. from the Wharton School at the University of Pennsylvania and a degree in
economics from the École Supérieure de Commerce de Paris.
16 |
|
|
2017 Proxy
Statement |
Table of
Contents
Proposal No.
One: Election of Directors |
|
WILLARD DERE,
M.D.
PROFESSOR OF INTERNAL MEDICINE, EXECUTIVE DIRECTOR OF
PERSONALIZED HEALTH AND CO-PRINCIPAL INVESTIGATOR OF THE CENTER FOR
CLINICAL AND TRANSLATIONAL SCIENCE AT THE UNIVERSITY OF UTAH HEALTH
SCIENCES CENTER |
AGE: 63 DIRECTOR
SINCE: JULY
2016
The Board has nominated Dr. Dere for his extensive
experience in managing biotechnology and pharmaceutical organizations,
clinical trial research as well as research and development in translating
basic science discoveries into new clinical therapies and novel drug
strategies. |
Willard Dere, M.D. joined our Board in
July 2016. Since November 2014, he has served as the Professor of Internal
Medicine, B. Lue and Hope S. Bettilyon Presidential Endowed Chair in Internal
Medicine for Diabetes Research, Executive Director of Personalized Health, and
Co-Principal Investigator of the Center for Clinical and Translational Science
at the University of Utah Health Sciences Center. Prior to re-joining academia
in November 2014, Dr. Dere was in the biopharmaceutical industry for 25 years.
From 2003 until his retirement in 2014, Dr. Dere held multiple roles at Amgen,
Inc., a biotechnology company, including serving as head of global development
and both international and corporate chief medical officer from December 2004 to
October 2014. He began his career at Eli Lilly in 1989, and held a number of different
global roles in clinical pharmacology, regulatory affairs, and both early-stage
translational, and late- stage clinical research. Since 2014, he has been a
member of the Board of Directors for Radius Health and has served on the scientific advisory
board of the California Institute of Regenerative Medicine. He joined the board
of Ocera Therapeutics in October 2016. Dr. Dere received a B.A. and an M.D. from
the University of California, Davis. He trained in internal medicine at the
University of Utah and endocrinology/metabolism at the University of California
at San Francisco.
|
MICHAEL GREY
EXECUTIVE CHAIRMAN, AMPLYX PHARMACEUTICALS, INC.; CHIEF
EXECUTIVE OFFICER AND CHAIRMAN, RENEO PHARMACEUTICALS, INC.
|
AGE: 64 DIRECTOR
SINCE: DECEMBER
2005
The Board has nominated Mr. Grey for his extensive
experience in managing biotechnology and pharmaceutical organizations,
business development, compensation matters and finance and
accounting. |
Michael Grey joined our Board in December
2005 and serves as the Chair of the Compensation Committee. Mr. Grey currently
serves as Executive Chairman of Amplyx Pharmaceuticals, Inc., a
biopharmaceutical company (Amplyx), a position he has held since December 2016,
and previously served as President and Chief Executive Officer of Amplyx from
October 2015 to December 2016. Mr. Grey also currently serves as Chief Executive
Officer and Chairman of Reneo Pharmaceuticals, Inc., a biopharmaceutical
company, a position he has held since October 2014. He previously served as
President and Chief Executive Officer of Lumena Pharmaceuticals, Inc., a
privately-held biotechnology company, from February 2011 until it was acquired
by Shire plc in May 2014. He has also served as a Venture Partner with Pappas
Ventures, a life sciences venture capital firm, since January 2010. Between
January and September 2009, he served as President and Chief Executive Officer
of Auspex Pharmaceuticals, Inc., a private biotechnology company. From January
2005 until its acquisition in August 2008, Mr. Grey was President and Chief
Executive Officer of SGX Pharmaceuticals, Inc., a public biotechnology company,
where he previously served as President from June 2003 to January 2005 and as
Chief Business Officer from April 2001 until June 2003. Prior to joining SGX
Pharmaceuticals, Inc., Mr. Grey acted as President, Chief Executive Officer and
Board member of Trega Biosciences, Inc., a biotechnology company. From November
1994 to August 1998, Mr. Grey was the President of BioChem Therapeutic, Inc.,
the pharmaceutical operating division of BioChem Pharma, Inc. During 1994, Mr.
Grey served as President and Chief Operating Officer for Ansan, Inc., a
pharmaceutical company. From 1974 to 1993, he served in various roles with
Glaxo, Inc. and Glaxo Holdings, plc, culminating in the position of Vice
President, Corporate Development. Mr. Grey is currently a director of Horizon
Pharma, plc, a publicly traded pharmaceutical company, Mirati Therapeutics, a
publicly traded biopharmaceutical company, and two private healthcare companies:
Balance Therapeutics, Inc. and Biothera Pharmaceutical Inc. Mr. Grey previously
served on the board of directors of one public company during the past five
years: Achillion Pharmaceuticals, Inc. (from 2001 to 2010). He received a B.Sc.
in chemistry from the University of Nottingham, United Kingdom.
Table of
Contents
Proposal No. One:
Election of Directors |
|
ELAINE J. HERON,
PH.D.
DIRECTOR, AMPLYX PHARMACEUTICALS, INC.
|
AGE: 69 DIRECTOR
SINCE: JULY
2002
The Board has nominated Dr. Heron for her extensive
experience in life science sales and marketing, finance and accounting,
corporate governance matters and research and
development. |
Elaine J. Heron, Ph.D., joined our Board
in July 2002 and serves as the Chair of the Corporate Governance and Nominating
Committee. Dr. Heron served as Chair and Chief Executive Officer of Amplyx from
February 2009 until October 2015, and she continues to serve as member of
Amplyxs board of directors. From July 2001 to October 2008, Dr. Heron was Chair
and Chief Executive Officer of Labcyte Inc., a private biotechnology company.
Before joining Labcyte Inc., she spent six years in positions of increasing
responsibility at the Applied Biosystems Group of Applera Corporation, a
biotechnology company, including the position of General Manager and Vice
President of Sales and Marketing. Dr. Heron earned a B.S. in chemistry with
highest distinction and a Ph.D. in analytical biochemistry from Purdue
University and an M.B.A. from Pepperdine University.
|
V. BRYAN LAWLIS,
PH.D.
PRESIDENT & CHIEF EXECUTIVE OFFICER, ITERO
BIOPHARMACEUTICALS, LLC |
AGE: 65 DIRECTOR
SINCE: JUNE
2007
The Board has nominated Dr. Lawlis for his extensive
experience in manufacturing biotechnology and other pharmaceutical
products, research and development of drug products and managing and
conducting clinical trials and drug regulatory
processes. |
V. Bryan Lawlis, Ph.D. joined our Board in June 2007. Since August 2011 he has served as the President and Chief Executive Officer
of Itero Biopharmaceuticals, LLC, a privately held company that holds the assets of Itero Biopharmaceuticals, Inc. Dr. Lawlis co-founded
and served as President and Chief Executive Officer of Itero Biopharmaceuticals, Inc. from 2006 until it discontinued operations in August
2011. Dr. Lawlis served as President and Chief Executive Officer of Aradigm Corporation, a pharmaceutical Company (Aradigm), from
August 2004 to August 2006, and served on its board of directors from February 2005 to August 2006, continuing in both capacities until
August 2006. Dr. Lawlis previously served as Aradigm’s President and Chief Operating Officer from June 2003 to August 2004 and its
Chief Operating Officer from November 2001 to June 2003. Prior to his time at Aradigm, Dr. Lawlis co-founded Covance Biotechnology
Services, a contract biopharmaceutical manufacturing operation, served as its President and Chief Executive Officer from 1996 to 1999,
and served as Chairman from 1999 to 2001, when it was sold to Diosynth RTP, Inc., a division of Akzo Nobel, NV. From 1981 to 1996,
Dr. Lawlis was employed at Genencor, Inc., a biotechnology company, and Genentech, Inc. His last position at Genentech, Inc. was Vice
President of Process Sciences. Dr. Lawlis has served on the board of Geron Corporation, a public biopharmaceutical company, since March
2012, and has served as a member of the board of directors of Coherus Biosciences, Inc., a public biotechnology company (Coherus),
since October 2014. He previously served on the board of KaloBios Pharmaceuticals, Inc., a public biopharmaceutical company, from
August 2013 until September 2014 and acted as the chairman of the scientific advisory board for Coherus from November 2012 to
June 2016. Dr. Lawlis holds board position at four privately held companies: AbSci, LLC, Itero Biopharmaceuticals, LLC, Reform Biologics
LLC and Sutro Biopharma, Inc. Since October 2015, Dr. Lawlis has served as an advisor to Phoenix Venture Partners, a venture capital
firm focusing on manufacturing technologies. Dr. Lawlis holds a B.A. in microbiology from the University of Texas at Austin, and a Ph.D. in
Biochemistry from Washington State University.
18 |
|
|
2017 Proxy
Statement |
Table of
Contents
Proposal
No. One: Election of Directors |
|
ALAN J. LEWIS,
PH.D.
CHIEF EXECUTIVE OFFICER AND DIRECTOR, DIAVACS, INC.
|
AGE: 71 DIRECTOR
SINCE: JUNE
2005
The Board has nominated Dr. Lewis for his extensive
experience in managing biotechnology and pharmaceutical organizations,
research and development, finance, compensation and corporate governance
matters. |
Alan J. Lewis, Ph.D., joined our Board in
June 2005 and serves as the Chair of the Science and Technology Committee. Since
March 2015, Dr. Lewis has served as Chief Executive Officer of DiaVacs, Inc., a
private biotechnology company, where he also serves as director. From November
2011 to March 2014, Dr. Lewis served as Chief Executive Officer and Director of
Medistem, Inc., a public biotechnology company, and from November 2011 to
October 2012, he served as a consultant to the California Institute for
Regenerative Medicine (CIRM). From July 2010 to November 2011, Dr. Lewis served
as President, Chief Executive Officer and Director of Ambit Biosciences, a
private biotechnology company. From January 2009 to June 2010, Dr. Lewis served
as President and Chief Executive Officer of The Juvenile Diabetes Research
Foundation. From February 2006 until December 2008, Dr. Lewis was the President
and Chief Executive Officer of Novocell, Inc., a privately held regenerative
disease biotechnology company focused on stem cell therapy. Prior to joining
Novocell Inc., starting in 2000, he was President of Celgene Signal Research, a
wholly- owned subsidiary of the Celgene Corporation, a pharmaceutical company.
From February 1994 to August 2000, he was the President and Chief Executive
Officer of Signal Pharmaceuticals, Inc., where he guided the company to its
successful acquisition by Celgene Corporation. From 1979 to 1994, Dr. Lewis held
a number of positions at Wyeth-Ayerst Research and its predecessor, Wyeth
Laboratories, Inc., including Vice President of Research at Wyeth-Ayerst
Research. Dr. Lewis has published over 120 full manuscripts and has written and
edited seven books. Dr. Lewis was a Research Associate at Yale University from
1972 to 1973. In December 2015 Dr. Lewis was appointed to the board of Assembly
Biosences Inc., a public biotechnology company. In February 2016 Dr. Lewis was
appointed to the board of Scancell Holdings, a public biotechnology company. Dr.
Lewis currently serves as Chairman of the Board of Cellastra Inc., a private
biotechnology company, and director of four other private biotechnology
companies, Batu Biologics, Capella Therapeutics, Neurametrix and Targazyme, Inc.
Dr. Lewis received a B.Sc. in physiology and biochemistry from Southampton
University, Southampton, Hampshire, United Kingdom, and a Ph.D. in pharmacology
from the University of Wales, Cardiff, United Kingdom.
|
RICHARD A.
MEIER
PRESIDENT-INTERNATIONAL AND EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER, OWENS & MINOR, INC.
|
AGE: 57 DIRECTOR
SINCE: DECEMBER
2006
The Board has nominated Mr. Meier for his extensive
experience in finance and accounting, capital markets, managing large
organizations in the healthcare field and information
technology. |
Richard A. Meier joined our Board in
December 2006 and serves as the Chair of the Audit Committee and has served as
our Lead Independent Director since June 2015. In March of 2013, Mr. Meier
joined Owens & Minor, Inc., a global healthcare services company, as
Executive Vice President and Chief Financial Officer, and was promoted to
President-International and Executive Vice President and Chief Financial
Officer, as of July 2015. From January 2010 through March 2012, Mr. Meier was an
Executive Vice President and Chief Financial Officer at TeleFlex, Incorporated,
a global medical device company. From November 2007 to May 2009, Mr. Meier
served as President and Chief Operating Officer of Advanced Medical Optics, a
global ophthalmic medical device company that was acquired by Abbott in February
2009. Between April 2002 and November 2007, Mr. Meier served continuously as
Advanced Medical Optics Chief Financial Officer, while serving in a variety of
additional senior operating roles. Prior to joining Advanced Medical Optics, Mr.
Meier was the Executive Vice President and Chief Financial Officer of Valeant
Pharmaceuticals, Inc. (formerly ICN Pharmaceuticals, Inc.), from October 1999 to
April 2002, and Senior Vice President & Treasurer from May 1998 to October
1999. Before joining ICN Pharmaceuticals, Inc., Mr. Meier was an executive with
the investment banking firm of Schroder & Co. Inc. in New York, from 1996.
Prior to Mr. Meiers experience at Schroder & Co., he held various financial
and banking positions at Salomon Smith Barney, Manufacturers Hanover
Corporation, Australian Capital Equity, and Greyhound Lines, Inc. Mr. Meier was
a Director of Staar Surgical Inc., an ophthalmic medical device company, from
2009 through June 2016, where he also served on both the Governance and Audit
Committees. Mr. Meier holds a B.A. in economics from Princeton
University.
Table of
Contents
Proposal No. One:
Election of Directors |
|
DAVID E.I. PYOTT, M.D.
(HON.)
LEAD DIRECTOR, AVERY DENNISON CORPORATION; DIRECTOR, ALYNLAM
PHARMACEUTICALS, INC.; SUPERVISORY BOARD MEMBER, ROYAL PHILIPS
|
AGE:
63 DIRECTOR
SINCE: JANUARY
2016
The Board has nominated Dr. Pyott for his extensive
experience in managing global multi-specialty healthcare companies and
marketing, research and development, international regulatory requirements
and business development in the pharmaceutical and biotechnology
industry. |
David E.I. Pyott, M.D. (Hon.) joined our
Board in January 2016. From 1998 to March 2015, Dr. Pyott served as Chief
Executive Officer of Allergan plc, a global pharmaceutical company. Prior to
Allergan, Dr. Pyott served as the Head of the Novartis Nutrition Division and as
a member of the Executive Committee of Switzerland-based Novartis AG. Dr. Pyott
is Lead Director and a member of the board of directors of Avery Dennison
Corporation, a public global labeling and packaging materials company, serves on the
board of directors of Alnylam Pharmaceuticals, Inc., a public biotechnology company and
is a member of the Supervisory Board of Royal Philips in the Netherlands, a
public diversified health and wellness company. Dr. Pyott serves as Chairman of Bioniz Therapeutics, Inc., a
private biotechnology company, and serves on the board of
Rani Therapeutics, LLC, a private biotechnology company. He is a member of the Governing Board
of the London Business School, President of the International Council of
Ophthalmology Foundation and a member of the Advisory Board of the Foundation of
the American Academy of Ophthalmology. Previously, Dr. Pyott served on the board of
Edwards Lifesciences Corp., a public medical device
company, from 2000 to 2014. Dr. Pyott holds a Diploma in
International and European Law from the Europa Institute at the University of
Amsterdam, an Honorary Degree in Medicine and a Master of Arts degree from the
University of Edinburgh, and a Master of Business Administration degree from the
London Business School.
|
DENNIS J. SLAMON, M.D., PH.D.
DIRECTOR, CLINICAL/ TRANSLATIONAL RESEARCH; DIRECTOR,
REVLON/UCLA WOMENS CANCER RESEARCH PROGRAM AT UCLAS JONSSON
COMPREHENSIVE CANCER CENTER |
AGE:
68 DIRECTOR
SINCE: MARCH
2014
The Board has nominated Dr. Slamon for his extensive
experience in clinical trial research, personalized medicine, hematology
and oncology studies as well as research and development in translating
basic science discoveries into new clinical therapies and novel drug
strategies.
|
Dennis J. Slamon, M.D., Ph.D., joined our
Board in March 2014. Dr. Slamon has served as director of Clinical/Translational
Research at UCLAs Jonsson Comprehensive Cancer Center since June 1995 and has
served as leader of the Revlon/UCLA Womens Cancer Research Program at UCLA
since its establishment in 1991. Since May 1996, Dr. Slamon has been a professor
of medicine and Chief of the Division of Hematology/Oncology in the UCLA
Department of Medicine and executive vice chair for research for UCLAs
Department of Medicine. He also serves as director of the medical advisory board
for the National Colorectal Cancer Research Alliance, a research and
fund-raising organization that promotes advances in colorectal cancer, and he is
member of the board of directors of Translational Research in Oncology, a
global, non-profit, academic clinical research organization. A 1970 B.A. honors
graduate in biology from Washington & Jefferson College and a 1975 graduate
of the University of Chicagos Pritzker School of Medicine, Dr. Slamon earned
his Ph.D. in cell biology that same year. He completed his internship and
residency at the University of Chicago Hospitals and Clinics, becoming chief
resident in 1978. One year later, he became a fellow in the Division of
Hematology/Oncology at UCLA where he currently serves on the faculty of
medicine.
Director
Independence
The Board has affirmatively determined
that, except for Mr. Bienaimé, all of our current directors are independent
within the meaning of the applicable listing standards of The Nasdaq Stock
Market LLC (NASDAQ) and relevant securities and
other laws, rules and regulations regarding the definition of independent (the
Independent Directors). There are no family relationships between any of our
directors and any of our executive officers.
20 |
|
|
2017 Proxy
Statement |
Table of
Contents
Proposal
No. One: Election of Directors |
Identifying
and Evaluating Candidates for Directors
The CGN Committee uses a variety of
methods for identifying and evaluating nominees for director. The CGN Committee,
in consultation with the Chair
and Lead Independent Director, regularly
assesses the composition of the Board and each committee of the Board to
evaluate its effectiveness and whether or not changes should be considered to
either the Board or any of the committees. In support of this process, the Board
has determined that the Board as a whole must have the right diversity, mix of
characteristics and skills for the optimal functioning of the Board in its
oversight of our Company. The Board believes that it should be composed of
persons with skills and experience in areas such as:
● |
Biotechnology and
pharmaceutical organizations (management, business development, sales
& marketing); |
● |
Clinical trial
research; |
● |
Compensation
matters; |
● |
Finance and
accounting; |
● |
Manufacturing biotechnology
and other; pharmaceutical products; |
● |
U.S. and international drug
regulatory processes; |
● |
Information
technology; |
● |
Legal and intellectual property;
|
● |
Corporate
governance; |
● |
Research and development;
and |
● |
Research and development in
translating basic science discoveries into new clinical therapies and
novel drug strategies. |
As part of our Boards periodic
self-assessment process, the CGN Committee implemented a process that requires
the full Board to annually determine the diversity of specific skills and
characteristics necessary for the optimal functioning of the Board over both the
short and long term. Although our Board does not have a formal diversity policy,
when evaluating director nominees or the possible addition of new directors, the
CGN Committee considers the skill areas currently represented on the Board, as
well as recommendations regarding skills that could improve the overall quality
and ability of the Board to carry out its oversight of the Company and other
functions.
Once the CGN Committee and the Board
determine that it is appropriate to nominate a new director, the CGN Committee
uses a flexible set of procedures for
selecting individual director candidates. The
CGN Committee utilizes general guidelines that
allow it to adjust the process to best satisfy the objectives it is attempting
to accomplish in any director search. The first step in the general process is
to identify the type of candidate the CGN Committee may desire for a particular
opening, including establishing the specific target skill areas, experiences and
backgrounds that are to be the focus of the director search. Once the target
characteristics are identified, the CGN Committee determines the best method for
finding a candidate who satisfies the specified criteria. The CGN Committee may
consider candidates recommended by management, by the members of the CGN
Committee, the Board, and stockholders, or the CGN Committee may engage a third
party to conduct a search for possible candidates. In considering candidates
submitted by stockholders, the CGN Committee will take into consideration the
needs of the Board and the qualifications of the candidate. Any stockholder
recommendations submitted for consideration by the CGN Committee should include
verification of the stockholder status of the person submitting the
recommendation and the recommended candidates name and qualifications for Board
membership and be addressed to the Board, at 105 Digital Drive, Novato, CA
94949, c/o G. Eric Davis, Executive Vice President, General Counsel and
Secretary.
Once candidates are identified, the CGN
Committee conducts an evaluation of qualified candidates. The evaluation
generally includes interviews and background and reference checks. There is no
difference in the evaluation process for
a candidate recommended by a stockholder as
compared to the evaluation process for
a candidate identified by any of the other
means described above. While the CGN Committee has not established specific
minimum criteria for a candidate, it has established important factors to
consider in evaluating a candidate. These factors include: strength of
character, mature judgment, business understanding, experience with the
pharmaceutical and/or biotechnology industries, availability and level of
interest, capacity to devote time to Board activities, career specialization,
relevant technical skills, diversity, and the extent to which the candidate
would fill a present need on the Board.
If the CGN Committee determines that a
candidate should be nominated as a candidate for election to the Board, the
candidates nomination is then recommended to the Board, and the directors may
in turn conduct their own review to the extent they deem appropriate. When the
Board has agreed upon a candidate, such candidate is recommended to the
stockholders for election at an Annual Meeting of stockholders or appointed as a
director by a vote of the Board as appropriate.
Table
of Contents
Proposal
No. One: Election of Directors |
Stockholder
Nominations
In addition, our Bylaws permit
stockholders to nominate directors for consideration at an annual meeting of
stockholders. For a description of the process for nominating directors in
accordance with our Bylaws, see the section of this Proxy Statement titled,
Additional InformationQuestions and Answers about these Proxy Materials and
Voting, including the information under the headings, How can I recommend a
director nominee for consideration by the CGN
Committee? and When are other proposals and stockholder nominations for next
years Annual Meeting due? All of the current directors, except Ms. Falberg,
have been recommended by the CGN Committee to the Board for re-election as our
directors at the Annual Meeting, and the Board has approved such
recommendations.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF
EACH NAMED NOMINEE NAMED IN PROPOSAL NO.
ONE. |
22 |
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|
2017 Proxy
Statement |
Table
of Contents
Proposal
No. One: Election of Directors |
The Boards
Roles and Responsibilities
This section describes key corporate
governance guidelines and practices that we have adopted. Complete copies of our
Corporate Governance Principles, the charters of the committees of the Board and
our Global Code of Conduct and Business Ethics described below may be found in
the Corporate Governance section of the Investors section of our website
at www.bmrn.com. Alternatively, you can request a copy of any of these documents free of
charge by writing to: G. Eric Davis, Executive Vice President, General Counsel
and Secretary, c/o BioMarin Pharmaceutical Inc., 105 Digital Drive, Novato, CA
94949. Information on our website is NOT incorporated by reference in this Proxy
Statement.
Board Leadership
Structure
The Board believes that it is important to
retain the flexibility to allocate the responsibilities of the offices of Chair
of the Board (Chair) and Chief Executive Officer in any manner that it
determines to be in the best interests of the Company. Accordingly, our
Corporate Governance Principles specifically reserve for the Board the right to
vest the responsibilities of Chair and Chief Executive Officer in the same
individual. The Board reviews its leadership structure periodically as part of
its annual self-assessment process. In addition, the Board continues to monitor
developments in corporate governance as well as the approaches our peers
undertake.
Beginning in August 2004 the Board
determined to separate the roles of Chair and Chief Executive Officer and
appointed Pierre Lapalme, an Independent Director, as Chair. In January 2015,
Mr. Lapalme notified the Company that he had elected to step down as Chair
following the 2015 Annual Meeting. Following Mr. Lapalmes decision, the Board
conducted a careful review of its leadership structure in light of the
composition of the Board, the Companys size, the nature of the Companys
business, the regulatory framework under which the Company operates, and other
relevant factors, and elected to revise the organizational structure of the
Board and the Company. To better align the operational leadership of the
Company, the Board determined that recombining the Chair and Chief Executive
Officer positions under the leadership of Jean-Jacques Bienaimé would be in the
best interests of the Company and its stockholders. This determination was based
on the Boards strong belief that, as the individual with primary responsibility
for managing the Companys day-to-day operations and with extensive knowledge
and understanding of the Company, combining the roles of Chair and Chief
Executive Officer in Mr. Bienaimé creates a clear line of authority that
promotes decisive and effective leadership, both within and outside the Company.
In making this judgment, the Board took into account its evaluation of Mr.
Bienaimés performance as Chief Executive Officer and as a current member of the
Board, his positive relationship with the other directors, his vast expertise in
the biopharmaceutical industry and proven track
record of successful leadership, and the strategic perspective he would bring to
the role of Chair. Mr. Bienaimé assumed the role of Chair effective on Mr.
Lapalme stepping down as Chair after the 2015 Annual Meeting.
The Chair is
responsible for:
●calling meetings of the
Board;
●presiding at meetings of the
Board;
●approving Board meeting schedules and meeting agendas,
in consultation with the Lead Independent Director;
●approving Board meeting materials, in consultation with
the Lead Independent Director; and
●being available for consultation with major
stockholders. |
The Board recognizes the importance of
having a Board structure that will continue to promote the appropriate exercise
of independent judgment by the Board. In connection with the decision to
recombine the roles of Chair and Chief Executive Officer under Mr. Bienaimé, the
Board also created the position of Lead Independent Director to serve as a
liaison between the Chief Executive Officer and the Independent Directors, and
to facilitate discussions and deliberation among the Independent Directors in
fulfilling their oversight responsibilities for the Company.
The Lead Independent Director coordinates
the activities of the other independent Directors and performs such other duties
and responsibilities as the Board may determine. The Lead Independent Director
Charter can be found in the Corporate Governance section of the Investors
section of our website at www.bmrn.com.
Information on our website is NOT incorporated by
reference in this Proxy Statement.
Table of
Contents
Proposal
No. One: Election of Directors |
As outlined in the Lead
Independent Director Charter, the Lead Independent Director is
responsible for:
●presiding at all meetings of the Board at which the
Chair is not present, including executive sessions of the Independent
Directors;
●serving as the principal liaison between the Chair and
the Independent Directors;
●approving meeting agendas for the Board, in consultation
with the Chair;
●approving the frequency of Board meetings and meeting
schedules in consultation with the Chair, assuring there is sufficient
time for discussion of all agenda items;
●working in collaboration with the CGN Committee and the
Chair to recommend selection for the membership and chair position for
each Board committee;
●interviewing, along with the chair of the CGN Committee,
all director candidates and making recommendations to the CGN
Committee;
●being available, when appropriate, for consultation and
direct communication with stockholders; and
●on an annual basis, in consultation with the Independent
Directors, reviewing the Lead Independent Director Charter and
recommending to the Board for approval any modifications or
changes.
The Lead Independent Director Charter also
grants the Lead Independent Director the authority to:
●call meetings of the Independent Directors or meetings
of the Board;
●retain outside advisors and consultants who report
directly to the Board on Board-wide issues; and
●select, retain and consult with outside counsel and
other advisors as the Lead Independent Director deems appropriate, at the
Companys sole expense. |
The Lead Independent Director is elected
annually by a majority vote of the Independent Directors if the offices of Chair
and Chief Executive Officer are held by the same person. The Independent
Directors have determined that Richard A. Meier will continue to serve as the
Lead Independent Director.
The Board, including each of its
committees, also has complete and open access to any member of the Companys
management and the authority to retain independent advisors as the Board or such
committee deems appropriate. In addition, all members of the Audit Committee,
the CGN Committee, the Compensation Committee and the Science and Technology
Committee are Independent Directors, and the committee chairs have authority to
hold executive sessions without management and non-Independent Directors
present.
Role of the
Board in Risk Oversight
The Board is actively involved in the
oversight of risks that could affect us. This oversight is conducted primarily
through committees of the Board, particularly the Audit Committee and the CGN
Committee, but the full Board has retained responsibility for general oversight
of risks. The Board satisfies this responsibility
through full reports by each committee chair regarding such committees
considerations and actions, as well as through regular reports directly from
officers responsible for oversight of particular risks.
Talent
Management Succession Planning
Our Board regularly reviews short and
long-term succession plans for the Chief Executive Officer and for other senior
management positions. Our executive leadership conducts annual performance
assessments that include succession plans for each of our senior management positions.
These succession plans are reviewed and approved
by our Chief Executive Officer, and the details of these succession plans,
including potential successors of our executive officers are presented to the
full Board.
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Proposal
No. One: Election of Directors |
Stockholder
Communications with the Board of Directors
Our relationship with our stockholders is
an important part of our corporate governance program. Engaging with our
stockholders helps us to understand how they view us, to set goals and
expectations for our performance, and to identify emerging issues that may
affect our strategies, corporate governance, compensation practices or other
aspects of our operations. Our stockholder and investor outreach includes
investor road shows, analyst meetings, and investor conferences and meetings.
Last year we hosted an investor day which stockholders were able to listen to
via our website. We also communicate with stockholders and other stakeholders
through various media, including our annual report and SEC filings, proxy
statement, news releases, and our website. Our conference calls for quarterly
earnings releases are open to all. These calls are available in real time and as
archived webcasts on our website for a period of time.
We also seek stockholder views on
governance and other matters throughout the year, concentrating our efforts on
our largest stockholders.
Over the last couple years, we continued
our concerted effort to engage constructively with stockholders, with management
reaching out to all of our top 30 non-affiliated stockholders. We found our
outreach to be enlightening and extremely informative.
The Board has adopted a process for
stockholders and others to send communications to the Board or any director. All
such communications should be sent by mail addressed to the Board or any
particular director at 105 Digital Drive, Novato, CA 94949, c/o G. Eric Davis,
Executive Vice President, General Counsel and Secretary. All communications
received by Mr. Davis will be sent directly to the Board or any particular
director to whom such communication was addressed.
Committees
of the Board of Directors
The Board has a number of committees that
perform certain functions for the Board. The current committees of the Board are
the Audit Committee, the Compensation Committee, the CGN Committee and the
Science and Technology Committee. Below is a description of each committee of
the Board. Each of the committees has authority to engage legal counsel or other
experts or consultants, as it deems appropriate to carry out its responsibilities. The Board has determined that each member of
each committee meets the applicable NASDAQ listing standards and relevant
securities and other laws, rules and regulations regarding independence and
that each member is free of any relationship that would impair his or her
individual exercise of independent judgment with regard to our
Company.
Audit Committee
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Richard A.
Meier, Chair
Kathryn E.
Falberg Elaine J. Heron, Ph.D. V. Bryan Lawlis,
Ph.D.
Meetings Held in 2016:
8 |
|
The Board has a separately designated standing
Audit Committee established in accordance with Section 3(a)(58) of the
Securities Exchange Act of 1934, as amended (the Exchange Act). The Audit
Committee is responsible for overseeing our accounting and financial
reporting processes and the audit of our financial statements, including
reviewing:
●financial information;
●our systems of internal accounting and financial
controls;
●the annual independent audit of our financial
statements; and
●the qualifications, independence and performance of our
independent outside auditors for the purpose of preparing or issuing an
audit report or performing other audit, review and attest
services. |
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Proposal No. One: Election of
Directors |
Among other duties and responsibilities,
the Audit Committee:
● |
reviews and discusses with management and the independent
auditors our annual and quarterly financial statements, and as
appropriate, our disclosures contained under the caption Managements
Discussion and Analysis of Financial Condition and Results of Operations
in our periodic reports to be filed with the SEC, earnings press releases
and the substance of the financial information and earnings guidance
provided to analysts and ratings agencies; |
● |
determines whether to recommend to the Board inclusion of the
audited financial statements in our Form 10-K filing; |
● |
at the completion of the annual audit, reviews with management
and the independent auditors the independent auditors audit and its
report on the financial statements and internal control over financial reporting, comments and recommendations of the
independent auditors, any significant changes in the auditors initial
audit plan, and other matters related to the audit; |
● |
reviews legal proceedings, litigation contingencies and other
risks and exposures that could materially affect the financial statements
and meets periodically with management to review the our major financial
risk exposures and the steps management has taken to monitor and control
such exposures; |
● |
reviews the independence of our auditors and appoints and,
where appropriate, replaces, our independent auditors; |
● |
approves all arrangements and fees for work, including all
audit, review and attest services and non-audit services, to be performed
by the independent auditors firm prior to the commencement of the
engagement; |
● |
reviews with the independent auditors and, if appropriate,
management, any management or internal control letter issued or proposed
to be issued by the independent auditors and managements response to such
letter; |
● |
reviews with management and any registered public accounting
firm engaged to perform review or attest services, any material conflicts
or disagreements between management and such accounting firm regarding
financial reporting, accounting practices or policies or other
matters; |
● |
reviews with the independent auditors that firms assessment of
our financial staff (including internal audit) and the adequacy and
effectiveness of the our financial and accounting internal controls;
and |
● |
establishes and oversees procedures for the receipt,
retention and treatment of complaints we receive regarding accounting,
internal accounting controls, or auditing matters and the confidential,
anonymous submission by our employees of concerns regarding questionable
accounting or auditing matters. |
The Audit Committee is currently composed
of four directors: Mr. Meier (Chair), Ms. Falberg, Dr. Heron and Dr. Lawlis. Ms.
Falbergs service on the Audit Committee will end upon the expiration of her
term as a director at the Annual Meeting. The Board annually reviews the NASDAQ
listing standards definition of independence for Audit Committee members and
has determined that all members of our Audit Committee are independent (as
independence is currently defined in NASDAQ Listing Rules 5605(c)(2)(A)(i) and
(ii)). The Board has determined that Mr. Meier qualifies as an audit committee
financial expert, as defined in applicable SEC rules. The Board made a
qualitative assessment of Mr. Meiers level of knowledge and experience based on
a number of factors, including his experience as the Chief Financial Officer of
several public companies and his finance and investment banking experiences. In
making that determination, the Board relied on the past business experience of
Mr. Meier. Please see the description of the business experience for Mr. Meier
under the heading Nominees for
Director.
The Audit Committee is governed by a
written charter adopted by the Board, which was last amended in February 2016.
The Audit Committee charter can be found in the Corporate Governance section of
the Investors section of our website at www.bmrn.com.
Information on our website is NOT incorporated by reference in this Proxy
Statement. The charter of the Audit Committee grants the Audit Committee full
access to all of our books, records, facilities and personnel, as well as
authority to obtain, at our expense, advice and assistance from internal and
external legal, accounting or other advisors and consultants and other external
resources that the Audit Committee considers necessary or appropriate in the
performance of its duties.
As required by its charter, the Audit
Committee conducts a self-evaluation at least annually. The Audit Committee also
periodically reviews and assesses the adequacy of its charter, including the
Audit Committees role and responsibilities, and recommends any proposed changes
to the Board for its consideration.
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Proposal
No. One: Election of Directors |
Compensation Committee
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Michael Grey,
Chair
Kathryn E.
Falberg Alan J. Lewis, Ph.D. David E.I.
Pyott, M.D. (Hon.)
Meetings Held in 2016: 8 |
|
The Compensation
Committee is responsible for:
●reviewing and recommending to
the Board changes to the compensation of our Chief Executive Officer and
approving the compensation for executives who report directly to the Chief
Executive Officer;
●assisting the Board in its oversight of the development,
implementation and effectiveness of our policies and strategies relating
to our human resources function;
●overseeing our incentive compensation plans and
equity-based plans; and
●preparing any report on executive compensation required
by applicable rules and regulations. |
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Among other duties and responsibilities,
the Compensation Committee:
● |
makes recommendations to the Board as to our general
compensation philosophy and oversees the development and implementation of
compensation programs (including salary, long-term incentives, bonuses,
perquisites, equity incentives, severance arrangements, change of control
related arrangements and other related benefits and benefit
plans); |
● |
makes recommendations to the Board regarding corporate
performance goals and objectives relevant to the compensation of the Chief
Executive Officer and sets performance goals and objectives relevant to the
compensation of executives who report directly to the Chief Executive
Officer and other senior management, and the type and amount of
compensation (including any new compensation programs); |
● |
evaluates, at least annually, the performance of the Chief
Executive Officer relative to Board-approved goals and objectives, and
recommends to the Board the Chief Executive Officers compensation and
other terms of his or her employment based on this evaluation, and
approves the compensation of executives who report directly to the Chief
Executive Officer; |
● |
taking into consideration the results of the most recent
say-on-pay vote, reviews and makes recommendations to the Board with
respect to our incentive compensation plans and equity-based
plans; |
● |
reviews material compensation programs applicable to our
employees generally; |
● |
reviews and makes recommendations to the Board regarding
compensation for non-employee members of the Board; |
● |
oversees all incentive compensation plans and equity-based
plans and discharges any responsibilities imposed on the Committee by
these plans; |
● |
discusses with management periodically, as it deems
appropriate, reports from management regarding the development,
implementation and effectiveness of our policies and strategies relating
to its human resources function and our regulatory compliance with respect
to compensation matters; |
● |
reviews and periodically approves the benefits and perquisites
provided to the Chief Executive Officer and other senior management, as
well as the employment, severance and change in control agreements
relating to the Chief Executive Officer and other senior
management; |
● |
reviews our incentive compensation arrangements to determine
whether they encourage excessive risk-taking, and reviews and discusses at
least annually the relationship between our risk management policies and
practices and compensation; |
● |
reviews and recommends to the Board for approval the frequency
with which we will conduct say-on-pay votes; and |
● |
produces and provides to the Board an annual report of the
Committee on executive compensation for inclusion in our annual proxy
statement in accordance with applicable rules and
regulations. |
The Compensation Committee is currently
composed of four directors: Mr. Grey (Chair), Ms. Falberg, Dr. Lewis and Dr.
Pyott. Ms. Falbergs service on the Compensation Committee will end upon the
expiration of her term as a director at the Annual Meeting. The Board has
determined that all members of our Compensation Committee are independent (as
independence is currently defined in NASDAQ Listing Rule 5605(a)(2)).
Table of
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Proposal No. One:
Election of Directors |
The Compensation Committee is governed by
a written charter adopted by the Board, which was last amended in June 2016. The
Compensation Committee charter can be found in the Corporate Governance section
of the Investors section of our website at www.bmrn.com. Information on our
website is NOT incorporated by reference in this Proxy Statement. The charter of
the Compensation Committee grants the Compensation Committee full access to all
of our books, records, facilities and personnel, as well as authority to obtain,
at our expense, advice and assistance from internal and external legal,
accounting or other advisors and consultants and other external resources that
the Compensation Committee considers necessary or appropriate in the performance
of its duties. In particular, the Compensation Committee has the sole authority
to retain compensation consultants to assist in its evaluation of executive and
director compensation, including the authority to approve the consultants
reasonable fees and other retention terms. Information regarding consultants
engaged by the Compensation Committee is provided in the Compensation Discussion and Analysis section of this Proxy Statement.
Under the Compensation Committee charter,
the Compensation Committee may, in its discretion, delegate its duties to a
subcommittee or to the Chair of the Compensation Committee.
As required by its charter, the
Compensation Committee conducts a self-evaluation at least annually. The
Compensation Committee also periodically reviews
and assesses the adequacy of its charter, including the Compensation Committees
role and responsibilities, and recommends any proposed changes to the Board for
its consideration.
The performance and compensation process
and specific determinations of the Compensation Committee with respect to
executive compensation for 2016 and certain elements of compensation for 2016
are described in greater detail in the Compensation Discussion and Analysis
section of this Proxy Statement.
Compensation Committee Interlocks and Insider
Participation
During 2016, the Compensation Committee
was composed of four directors: Mr. Grey (Chair), Ms. Falberg, Dr. Lewis and Dr.
Pyott. No member of our Compensation Committee has ever been an executive
officer or employee of us or any of our subsidiaries. None of our executive
officers currently serves, or has served during the last completed fiscal year,
on the compensation committee or board of directors of any other entity that has
one or more executive officers serving as a member of our Board or Compensation
Committee. During 2016, no members of our Compensation Committee had any
relationships requiring disclosure by us under the SECs rules requiring
disclosure of certain relationships and related party transactions.
Corporate Governance and Nominating Committee
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Elaine J. Heron,
Ph.D., Chair
Willard Dere,
M.D. David E.I. Pyott, M.D. (Hon.) Dennis J.
Slamon, M.D., Ph.D.
Meetings Held in 2016: 4 |
|
The CGN Committee is responsible
for:
●overseeing the composition of
the Board to ensure that qualified individuals meeting the criteria of
applicable rules and regulations serve as members of the Board and its
committees;
●overseeing the development and implementation of
corporate governance principles, policies, codes of conduct and codes of
ethics relating to the operation of the Board and its
committees;
●making recommendations to the Board regarding such
corporate governance issues; and
●keeping informed on issues related to
corporate responsibility.
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Among other duties and responsibilities,
the CGN Committee:
● |
identifies, reviews and evaluates individuals qualified to
serve on the Board consistent with criteria approved by the Board as
vacancies arise and seeks out nominees to enhance the diversity, expertise
and independence of the Board; |
● |
considers and assesses the independence of directors, including
whether a majority of the Board continue to be independent from management
in both fact and appearance, as well as within the meaning prescribed by
the listing standards of NASDAQ; |
● |
recommends to the Board for selection director
nominees; |
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Proposal
No. One: Election of Directors |
● |
considers recommendations for Board nominees and
proposals appropriately submitted by our stockholders; |
● |
develops and recommends to the full Board corporate governance
policies, requirements, criteria and procedures, including policies and
procedures to facilitate stockholder communications with the
Board; |
● |
reviews related party transactions involving directors and
executives for potential conflicts of interest and recommends courses of
action as necessary; |
● |
performs an annual evaluation of the Board and each committee
of the Board; |
● |
makes recommendations to the full Board concerning the
appropriate size and needs of the Board, including regarding committees of
the Board to be maintained or created and chairmanship and membership of
the Board committees; |
● |
at least annually, reviews and assesses our Corporate
Governance Principles applicable to the Board and the Company and
recommend to the Board from time to time any amendments to such
principles; |
● |
reviews and assesses our Global Code of Conduct and Business
Ethics and Corporate Compliance and Ethics Program and recommend to the
Board from time to time any amendments to such code and
program; |
● |
oversees and evaluates compliance by the Board and our
management with our Corporate Governance Principles, Global Code of
Conduct and Business Ethics and Corporate Compliance and Ethics
Program |
● |
reviews and approves all board memberships for a for-profit
company, other commercial entity, or advisory board, for our Chief
Executive Officer and other executive officers and directors, to assess whether such proposed
membership creates or has the potential to create either a conflict of
interest or an appearance of one |
● |
implements, in conjunction with the Audit Committee, the
internal audit function; |
● |
establishes a toll-free telephone number for
employees to anonymously report complaints relating to financial fraud,
environmental hazards, illegal or unfair employment practices, and
unethical behavior; |
● |
reviews our risk management procedures for those areas deemed
appropriate by the Committee; |
● |
recommends guidelines to the Board for corporate succession
planning as it relates to our Chief Executive Officer, if appropriate;
and |
● |
reviews and oversees related party transactions, as required by
our Corporate Governance Principles. |
A detailed discussion of the CGN
Committees procedures for recommending candidates for election as a director
appears below under the caption Identifying and Evaluating Candidates for Director.
The CGN Committee is currently
composed of four directors, each of whom is independent under the listing
standards of NASDAQ. The members of the CGN Committee are Dr. Heron (Chair), Dr.
Dere, Dr. Pyott and Dr. Slamon.
The CGN Committee is governed by a
written charter adopted by the Board, which was last amended in December 2016.
The CGN Committee Charter and our Corporate Governance Principles can be found
in the Corporate Governance section of the Investors section of our website
at www.bmrn.com.
Information on our website is NOT incorporated by reference in this Proxy
Statement. The CGN Committee charter complies with the guidelines established by
NASDAQ. The charter of the CGN Committee grants the CGN Committee full access to
all of our books, records, facilities and personnel, as well as authority to
obtain, at our expense, advice and assistance from internal and external legal,
accounting or other advisors and consultants and other external resources that
the CGN Committee considers necessary or appropriate in the performance of its
duties.
As required by its charter, the CGN
Committee conducts a self-evaluation at least annually. The CGN Committee also
periodically reviews and assesses the adequacy of its charter, including the CGN
Committees role and responsibilities, and recommends any proposed changes to
the Board for its consideration.
Table of
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Proposal No. One:
Election of Directors |
Science and Technology Committee
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Alan J. Lewis,
Ph.D., Chair
Willard Dere,
M.D. Michael Grey Elaine J. Heron, Ph.D. V. Bryan Lawlis,
Ph.D. Dennis J. Slamon, M.D., Ph.D.
Meetings Held in 2016: 2 |
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The Science and Technology Committee is
responsible for assisting the Board in overseeing our operations. Among
other duties and responsibilities, the Science and Technology
Committee:
●reviews matters relating to scientific capabilities and
programs and reports to the Board regarding such review in order to help
facilitate the Boards oversight of our scientific technology,
intellectual property portfolio and strategy and help promote our
effective decision-making on science;
●reviews and considers managements decisions regarding
the allocation, deployment, utilization of, and investment in our
scientific assets; and
●reviews and considers managements decisions regarding
acquiring or divesting scientific technology or otherwise investing in
research or development programs. |
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The Science and Technology Committee is
currently composed of six directors: Dr. Lewis (Chair), Dr. Dere, Mr. Grey, Dr.
Heron, Dr. Lawlis and Dr. Slamon.
The Science and Technology Committee is
governed by a written charter, which was adopted by the Board in December 2012.
The Science and Technology Committee charter can be found in the Corporate
Governance section of the Investors section of our website at www.bmrn.com. Information on our website is NOT incorporated by reference
in this Proxy Statement. The charter of the Science and Technology Committee
grants it the resources and authority to select, retain, terminate, and approve
the fees and other retention terms of special
counsel or other experts or consultants, as it deems appropriate in the
performance of its duties and responsibilities.
As required by its charter, the Science
and Technology Committee conducts a self-evaluation at least annually. The
Science and Technology Committee also periodically reviews and assesses the
adequacy of its charter, including the Science and Technology Committees role
and responsibilities, and recommends any proposed changes to the Board for its
consideration.
Board
Processes
Meetings of the Board of Directors
The Board oversees our business. It
establishes overall policies and standards and reviews the performance of
management. During the fiscal year ended December 31, 2016, the Board held six
meetings and took action by unanimous written consent on four occasions. Each Board member attended 75% or more of the
aggregate meetings of the Board and of the committees on which he or she served,
held during the period for which he or she was a director or committee member,
respectively.
Executive Sessions
Applicable NASDAQ listing standards
require that the Independent Directors meet from time to time in executive
session. In fiscal year 2016, our Independent Directors met in regularly
scheduled executive sessions at which only Independent Directors were
present.
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Attendance at Annual Meeting
It is our policy to request that all Board
members attend the Annual Meeting of stockholders. However, we also recognize
that personal attendance by all directors is not always possible. Seven of the
eight directors serving at the time of the 2016 Annual Meeting of Stockholders
attended such meeting.
Other
Board Governance Information
Global Code of Conduct and Business Ethics
The Board has adopted our Global Code of
Conduct and Business Ethics which is applicable to all employees and directors,
including our Chief Executive Officer, Chief Financial Officer, other executive
officers and senior financial personnel. A copy of our Global Code of Conduct
and Business Ethics is available in the Corporate Governance section of the
Investors section of our website at www.bmrn.com.
Information on our website is NOT incorporated by reference in this Proxy
Statement. If we make any substantive amendments to our
Global Code of Conduct and Business Ethics or grant any waiver from a provision
of our Global Code of Conduct and Business Ethics to any executive officer or
director, we will promptly disclose the nature of the amendment or waiver on our
website in accordance with the requirements of Item 5.05 of Form 8-K.
Transactions with Related Persons, Promoters and Certain Control
Persons
Since January 1, 2016, there has not been
nor is there currently proposed any transaction or series of similar
transactions to which we were or are to be a party in which the amount involved
exceeds $120,000 and in which any director, executive officer, holder of more
than 5% of our common stock, or any member of the
immediate family of any of the foregoing persons, had or will have a direct or
indirect material interest other than compensation agreements and other
arrangements, which are described elsewhere in this Proxy Statement.
Review, Approval, and Ratification of Transactions with Related
Party
Our CGN Committee has primary
responsibility for reviewing and approving in advance or ratifying all related
party transactions. Additionally, on at least an annual basis, the Audit
Committee also reviews all identified related party transactions. In conformance
with SEC regulations, we define related persons to include our executive
officers, our directors and nominees to become a director of our company, any
person who is known to us to be the beneficial owner of more than 5% of any
class of our voting securities, any immediate family member of any of the
foregoing persons, and any firm, corporation or other entity in which any of the
foregoing persons is employed, is a general partner or in which such person has
a 5% or greater beneficial ownership interest.
We have several processes that we use to
ensure that we identify and review all related party transactions. First, each
executive officer is required to notify either our General Counsel or Chief
Financial Officer of any potential transaction that could create a conflict of
interest, and the General Counsel or Chief Financial Officer is required to
notify the CGN Committee of the potential
conflict. The directors, Chief Executive Officer, Chief Financial Officer and
General Counsel are required to notify the CGN Committee of any potential
transaction that could create a conflict of interest. Second, each year, we
require our directors and executive officers to complete director and officer
questionnaires identifying any transactions with us in which the executive
officer or director or their family members have an interest.
The CGN Committee reviews related party
transactions due to the potential for such transactions to create a conflict of
interest. A conflict of interest occurs when an individuals private interest
interferes, or appears to interfere, with our interests. It is our general
policy to approve or ratify related person transactions only when our Board or a
committee of our Board determines that the transaction is in, or is not
inconsistent with, our and our stockholders best interests, including
situations where the Company may obtain products or services of a nature,
quantity or quality, or on other terms, that are not readily available from
alternative sources or when the transaction is on terms
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Proposal No. One:
Election of Directors |
comparable to those that could be obtained
in arms length dealings with an unrelated third party.
These policies and procedures are included
in our Corporate Governance Principles, which are available in the
Corporate Governance section of the Investors
section of our website at www.bmrn.com.
Information on our website is NOT incorporated by reference into this Proxy
Statement.
Indebtedness of Directors and Executive Officers
We have a policy to not lend money to our
directors or executive officers or associates of any director or executive
officer. None of our directors or executive officers or associates of any
director or executive officer is or at any time since January 1, 2016 has been
indebted to us.
Independent Director Compensation
Our directors play a critical role in
guiding our strategic direction and overseeing the management of BioMarin. The
many responsibilities and risks and the substantial time commitment of being a
director require that we provide adequate compensation commensurate with our
directors workload and opportunity costs. Independent Directors receive a
combination of annual cash retainers,
RSU grants
and stock option grants in amounts that correlate to their responsibilities and
levels of Board participation, including service on Board committees.
Our only
employee director, Mr. Bienaimé, receives no separate compensation for his
service as a director or Chair.
Cash
Compensation
The following table is a summary of the
annual cash compensation payable to the Independent Directors in 2016. Each
applicable line item is an additional element of compensation.
Director
Position |
Annual Cash Compensation |
(1) |
All Independent Directors |
|
$ |
65,000 |
|
Independent Chair of the Board (if
applicable) |
|
$ |
65,000 |
|
Lead Independent Director |
|
$ |
65,000 |
|
Audit Committee Chair |
|
$ |
25,000 |
|
Audit Committee (Non-Chair) |
|
$ |
12,000 |
|
Compensation Committee Chair |
|
$ |
20,000 |
|
Compensation Committee
(Non-Chair) |
|
$ |
10,000 |
|
Corporate Governance and Nominating
Committee Chair |
|
$ |
15,000 |
|
Corporate Governance and Nominating
Committee (Non-Chair) |
|
$ |
7,500 |
|
Science and Technology Committee
Chair |
|
$ |
15,000 |
|
Science and Technology Committee
(Non-Chair) |
|
$ |
7,500 |
|
(1) |
The annual cash compensation that
the Company pays to its Board members, other than Mr. Bienaimé, is based
on their positions on the Board or the committees of the Board, and the
Company does not compensate the Board members on a per meeting basis.
Except for the additional retainer for the Lead Independent Director,
which was approved by the Board in June 2015, and the increase in the
retainer for all Independent Directors from $55,000 to $65,000, which was
approved by the Board in December 2016, the amounts reflected in the table
above were approved by the Board in June 2014 and are unchanged from the
amounts reported in the Companys Proxy Statement for the 2016 Annual
Meeting. |
32 |
|
|
2017 Proxy
Statement |
Table of
Contents
Proposal
No. One: Election of Directors |
Equity Compensation
The Board reviewed the director
compensation program in 2015 and determined to transition from a fixed share
equity grant approach to a fixed value equity grant approach to better manage
the Boards equity competitiveness. We continued to use the fixed value
approach for the 2016 director equity grant.
Initial Award
Each Independent Director is automatically
granted an initial equity grant valued at $550,000, based on the Black-Scholes
model valuation using a three-month trailing average closing price of our common
stock, with such valuation allocated forty percent (40%) to RSUs and sixty
percent (60%) to options to purchase shares of our common stock on the date that
such person first becomes an Independent Director. The shares of common stock
subject to the initial option grant and the initial RSU grant vest annually over
three years. The initial award amounts and vesting schedules were approved by
the Board in June 2015.
Annual Award
On the date of our Annual Meeting of
stockholders, each reelected director is granted an additional equity grant
valued at $375,000, based on the Black-Scholes model valuation using a
three-month trailing average closing price of our common stock. The shares of common
stock subject to the additional annual option grant and the additional annual
RSUs vest in full on the one-year anniversary of the grant date.
The annual award amounts and vesting
schedules were approved by the Board in June 2015 and were modified by the Board
in December 2016 to include the following: (i) the allocation between RSUs and
options shifted from forty percent (40%) to RSUs and sixty percent (60%) to
options to a 50%/50% split, and (ii) the annual award equity grant value
increased from $325,000 to $375,000. The annual option grant or RSU grant for a
director who has served for less than a year is prorated to the nearest quarter.
These options and RSUs continue to vest only while the director provides service
to the Company. The exercise price per share of each of these options is 100% of
the fair market value of a share of our common stock on the date of the grant of
the option. These options have a term of 10 years.
In fiscal year 2016, 17,200 RSUs and
options to purchase 54,720 shares of common stock were awarded to the Independent
Directors under our Amended and Restated 2006 Plan in connection with both
initial and annual awards to our directors. Our Board members are eligible to
enroll in our Nonqualified Deferred Compensation Plan under which participants
may elect to defer all or a portion of their fees and RSU awards otherwise
payable to them, and thereby defer taxation of these deferred amounts until
actual payment of the deferral amounts in future years. The following table
lists actual compensation paid to each of the directors during 2016, other than
Mr. Bienaimé, who is also an NEO. Mr. Bienaimés compensation is described under
the Executive Compensation section of this Proxy Statement. Mr. Bienaimé received no
additional compensation for serving on our Board in 2016.
2016 Independent Director
Compensation |
Name |
|
Fees Earned ($) |
(1) |
|
Stock Awards ($) |
(2) |
|
Option Awards ($) |
(3) |
|
Total ($) |
|
Willard Dere, M.D. |
|
37,500 |
|
|
243,091 |
(5) |
|
368,114 |
(5) |
|
648,705 |
|
Kathryn E. Falberg |
|
41,000 |
|
|
243,091 |
(5) |
|
368,114 |
(5) |
|
652,205 |
|
Michael Grey |
|
85,000 |
(4) |
|
135,175 |
(4) |
|
160,289 |
|
|
380,464 |
|
Elaine J. Heron, Ph.D. |
|
92,000 |
(4) |
|
135,175 |
(4) |
|
160,289 |
|
|
387,464 |
|
Pierre Lapalme |
|
37,250 |
|
|
|
|
|
|
|
|
37,250 |
(6) |
V.
Bryan Lawlis, Ph.D. |
|
77,000 |
|
|
135,175 |
|
|
160,289 |
|
|
372,464 |
|
Alan J. Lewis, Ph.D. |
|
82,500 |
(4) |
|
135,175 |
(4) |
|
160,289 |
|
|
377,694 |
|
Richard A. Meier |
|
147,500 |
|
|
135,175 |
|
|
160,289 |
|
|
442,964 |
|
David E.I. Pyott, M.D. (Hon.) |
|
75,000 |
|
|
288,367 |
(5) |
|
410,032 |
(5) |
|
773,399 |
|
Dennis J. Slamon, M.D., Ph.D. |
|
72,500 |
(4) |
|
135,175 |
(4) |
|
160,289 |
|
|
367,964 |
|
(1) |
Director fees are generally paid
quarterly in arrears within four weeks after the close of a quarter.
Accordingly, director fees earned in the fourth quarter of 2016 were paid
in early 2017. |
Table of Contents
Proposal No. One:
Election of Directors |
(2) |
The amounts in this column
reflect the aggregate grant date fair market value computed in accordance
with the Financial Accounting Standards Boards Accounting Standards
Codification (FASB ASC) Topic 718. The grant date fair market value of the
annual RSU grants made on June 6, 2016 was $89.52 per share and the grant
date fair market values of the initial RSU grants made on January 4, 2016
and July 15, 2016 were $104.92 and $92.08, respectively. For assumptions
used in determining the grant date fair market value, see Note 17 to the
consolidated financial statements contained in the Companys Annual Report
on Form 10-K for the year ended December 31, 2016, as filed with the SEC
on February 27, 2017. |
|
The aggregate number of shares
subject to RSU awards held by the Independent Directors listed in the
table above as of December 31, 2016 was as follows: |
|
Name |
RSU Awards |
|
|
Willard Dere, M.D. |
2,640 |
(5) |
|
Kathryn E. Falberg |
2,640 |
(5) |
|
Michael Grey |
1,510 |
(4) |
|
Elaine J. Heron, Ph.D. |
1,510 |
(4) |
|
Pierre Lapalme |
|
|
|
V.
Bryan Lawlis, Ph.D. |
1,510 |
|
|
Alan J. Lewis, Ph.D. |
1,510 |
(4) |
|
Richard A. Meier |
1,510 |
|
|
David E.I. Pyott, M.D. (Hon.) |
2,860 |
(5) |
|
Dennis J. Slamon, M.D., Ph.D. |
2,843 |
(4) |
(3) |
The amounts in this column
reflect the aggregate grant date fair market value computed in accordance
with FASB ASC Topic 718. The grant date fair market value of the annual
option grants made on June 6, 2016 was $36.10 per share and the grant date
fair market values of the initial options grants made on January 4, 2016
and July 15, 2016 were $54.08 and $37.26, respectively. For assumptions
used in determining the grant date fair market value, see Note 17 to the
consolidated financial statements contained in the Companys Annual Report
on Form 10-K for the year ended December 31, 2016 as filed with the SEC on
February 27, 2017. The aggregate number of shares subject to option awards
held by the Independent Directors listed in the table above as of December
31, 2016 was as follows: |
|
Name |
Option Awards |
|
Willard Dere, M.D. |
9,880 |
|
Kathryn E. Falberg |
9,880 |
|
Michael Grey |
38,840 |
|
Elaine J. Heron, Ph.D. |
46,340 |
|
Pierre Lapalme |
99,400 |
|
V.
Bryan Lawlis, Ph.D. |
92,440 |
|
Alan J. Lewis, Ph.D. |
38,840 |
|
Richard A. Meier |
98,840 |
|
David E.I. Pyott, M.D. (Hon.) |
8,320 |
|
Dennis J. Slamon, M.D., Ph.D. |
19,390 |
(4) |
Amount or award, as applicable,
deferred pursuant to our Nonqualified Deferred Compensation Plan. A more
detailed discussion of our nonqualified deferred compensation arrangements
is provided under the heading Nonqualified Deferred Compensation Plan in this Proxy Statement. |
(5) |
Amount or award, as applicable,
includes initial equity grant for director appointed or elected in
2016. |
(6) |
Mr. Lapalme did not stand for
re-election at the 2016 Annual Meeting. |
34 |
|
|
2017 Proxy
Statement |
Table of Contents
Proposal No.
Two: Ratification of the Selection of the Independent Registered Public
Accounting Firm for BioMarin |
The Audit Committee has selected KPMG LLP
(KPMG) as the Companys independent registered public accounting firm for the
fiscal year ending December 31, 2017 and has further directed that management
submit the selection of the independent registered public accounting firm for
ratification by the stockholders at the Annual Meeting. KPMG has served as our
independent registered public accounting firm since June 11, 2002.
Representatives of KPMG plan to attend the Annual Meeting and will be available
to answer appropriate questions from stockholders and, although they do not
expect to do so, they will have the opportunity to make a statement if they so
desire.
Neither the Companys Bylaws nor other
governing documents or law require stockholder ratification of the selection of
KPMG as the Companys independent registered public accounting firm. However,
the Board is submitting the selection of KPMG to the stockholders for
ratification as a matter of good corporate practice. If the stockholders fail to
ratify the selection, the Audit Committee will reconsider whether or not to
retain KPMG. Even if the selection is ratified, the Audit Committee in its
discretion may direct the appointment of different independent registered public
accounting firm at any time during the year if the Audit Committee determines
that such a change would be in the best interest of the Company and its
stockholders.
Independent
Registered Public Accounting Firm
The following is a summary of the fees and
services provided by KPMG to the Company for fiscal years 2016 and
2015.
Description of Services
Provided by KPMG LLP |
|
Year Ended December 31, 2016 |
|
|
Year Ended December 31, 2015 |
|
Audit Fees: |
|
$ |
1,952,012 |
(1) |
|
$ |
1,643,757 |
(1) |
Audit Related Fees: These services
relate to assurance and related services reasonably related to the
performance of the audit or review of financial statements not included
in Audit Fees above. |
|
$ |
|
|
|
$ |
214,000 |
(2) |
Tax Fees: These services relate to
the preparation of federal, state and foreign tax returns and other
filings, as well as to the area of tax strategy and minimizing Federal,
state, local and foreign taxes. |
|
$ |
|
|
|
$ |
|
|
All Other Fees: |
|
$ |
37,400 |
(3) |
|
$ |
1,587 |
(3) |
Total Fees: |
|
$ |
1,989,412 |
|
|
$ |
1,859,344 |
|
(1) |
Includes fees for non-routine transactions and comfort
letters. |
(2) |
Reflects fees for a process review project and a
carve-out audit to support the Companys non-routine
transactions. |
(3) |
Reflects fees for assurance services not reasonably
related to the performance of the audit or review the Companys financial
statements and fees for non-audit services provided in relation to the
conversion of our statutory filings to extensible Business Reporting
Language or xbrl as required by HM Revenue and
Customs. |
The Audit Committee has the sole authority
to approve the scope of the audit and any audit-related services as well as all
audit fees and terms. The Audit Committee must pre-approve any audit and
non-audit services provided by our independent registered public accounting
firm. The Audit Committee will not approve the engagement of the independent
registered public accounting firm to perform any services that the independent
registered public accounting firm would be prohibited from providing under
applicable securities laws, NASDAQ requirements or Public Company Accounting
Oversight Board rules. In assessing whether to
approve the use of our independent registered public accounting firm to provide
permitted non-audit services, the Audit Committee strives to minimize
relationships that could appear to impair the objectivity of our independent
registered public accounting firm. The Audit Committee will approve permitted
non-audit services by our independent registered public accounting firm only
when it will be more effective or economical to have such services provided by
our independent registered public accounting firm than by another
firm.
Table of Contents
Proposal No. Two: Ratification of the Selection
of the Independent Registered Public Accounting Firm for
BioMarin |
The Audit Committee annually reviews and
pre-approves the statutory audit fees that can be provided by the independent
registered public accounting firm. Any proposed services exceeding pre-set
levels or amounts will require separate pre-approval by the Audit Committee,
although our Chief Financial Officer and Chief Accounting Officer can approve up
to an additional $100,000 in the aggregate per calendar year for global
statutory audits that the Audit Committee has pre-approved. In addition, any
pre-approved services for which no pre-approved cost level has been set or which
would exceed the pre-approved cost by an amount
that would cause the aggregate $100,000 amount to be exceeded must be separately
pre-approved by the Audit Committee.
The Audit Committee has delegated
pre-approval authority to the Chair of the Audit Committee within the guidelines
discussed above. The Chair of the Audit Committee is required to inform the
Audit Committee of each pre-approval decision at the next regularly scheduled
Audit Committee meeting.
All the services provided by KPMG during
2016 were pre-approved in accordance with this policy.
Report of
the Audit Committee of the Board of Directors(1)
The Audit Committee has reviewed and
discussed the audited financial statements of the Company with management of the
Company. In addition, the Audit Committee has discussed with KPMG the matters
required to be discussed by Auditing Standard No. 1301, Communications with Audit Committees, as adopted by the Public Company Accounting Oversight Board
(PCAOB). The Audit Committee has received from KPMG the written disclosures and
the letter required by applicable requirements of the PCAOB regarding KPMGs
communications with the Audit Committee concerning independence and has
discussed with KPMG the independence of KPMG from the Company and its
management. Based on the foregoing, the Audit Committee recommended to the Board
that the audited financial statements be included in the Companys Annual Report
on Form 10-K filed with the SEC for the fiscal year ended December 31, 2016.
Respectfully submitted on March 21, 2017
by the members of the Audit Committee of the Board of Directors:
Richard A. Meier, Chair
Kathryn E.
Falberg
Elaine J. Heron, Ph.D.
V. Bryan
Lawlis, Ph.D.
(1) |
The material in this report is
not deemed soliciting material, is not deemed filed with the SEC, is
not subject to Regulation 14A or 14C or to the liabilities of Section 18
of the Exchange Act, and is not to be incorporated by reference into any
filing of BioMarin under the Securities Act of 1933, as amended (the
Securities Act), or the Exchange Act, whether made before or after the
date hereof and irrespective of any general incorporation language in any
such filing. |
THE BOARD OF DIRECTORS
RECOMMENDS A VOTE IN FAVOR OF PROPOSAL NO.
TWO. |
36 |
|
|
2017 Proxy
Statement |
Table of Contents
The following table sets forth certain
information concerning our executive officers as of March 17, 2017.
Name |
|
Age |
|
Position with
BioMarin |
Jean-Jacques Bienaimé |
|
63 |
|
Chief Executive Officer |
Jeff Ajer |
|
54 |
|
Executive Vice President, Chief Commercial
Officer |
Robert A. Baffi, Ph.D. |
|
62 |
|
Executive Vice President, Technical
Operations |
G.
Eric Davis |
|
46 |
|
Executive Vice President, General Counsel and
Secretary |
Henry J. Fuchs, M.D. |
|
59 |
|
President, Worldwide Research &
Development |
Brian R. Mueller |
|
43 |
|
Senior Vice President, Corporate Controller and Chief
Accounting Officer |
Daniel Spiegelman |
|
58 |
|
Executive Vice President and Chief Financial
Officer |
There are no family relationships between
any of our directors and any of our executive officers. The biographical
information for Mr. Bienaimé is set forth above under Proposal No. One:
Election of Directors Nominees for Director.
|
Jeff
Ajer joined BioMarin in August 2005 and
currently serves as our Executive Vice President and Chief Commercial
Officer. |
From October 2012 to January 2014, Mr.
Ajer served as our Senior Vice President and Chief Commercial Officer. From
April 2009 to October 2012, Mr. Ajer served as our Vice President, Commercial
Operations, The Americas, where he had responsibility for commercial operations
throughout the Americas and led product marketing, reimbursement, and sales
operations for BioMarin. Prior to joining BioMarin, Mr. Ajer served in various
roles at Genzyme Corporation (Genzyme) beginning in November 2003, most recently
as Vice President, Global Transplant Operations from December 2004 to August
2005. Mr. Ajers experience prior to Genzyme includes roles in sales, marketing
and operations at SangStat Medical Corporation and ICN Pharmaceuticals. Mr. Ajer
received both a B.S. in chemistry and an M.B.A. from the University of
California, Irvine.
|
Robert
A. Baffi, Ph.D., joined BioMarin in May
2000 and currently serves as our Executive Vice President of Technical
Operations, responsible for overseeing our manufacturing, process
development, quality, and analytical chemistry
departments. |
From 2000 to December 2009, Dr. Baffi
served as our Senior Vice President of Technical Operations. From 1986 to 2000,
Dr. Baffi served in a number of increasingly responsible positions at Genentech,
Inc., primarily in the functional area of quality control. Prior to Genentech,
Dr. Baffi worked for Cooper BioMedical as a Research Scientist and at Becton
Dickinson Research Center as a Post-Doctoral Fellow. Dr. Baffi has contributed
to more than 20 regulatory submissions for product approval in the United States
and Europe and to more than 50 regulatory submissions for investigational new
drug testing. He currently serves on the board for the National Institute for
Bioprocessing Research & Training. Dr. Baffi received a Ph.D., M. Phil and a
B.S. in biochemistry from the City University of New York and an M.B.A. from
Regis University.
Table of Contents
|
G. Eric
Davis joined BioMarin in March 2004, and
currently serves as our Executive Vice President, General Counsel and
Secretary. |
From December 2005 to March 2016, Mr.
Davis served as our Senior Vice President, General Counsel and Secretary and
from 2004 to December 2005, Mr. Davis served as our Vice President, General
Counsel and Secretary. From 2000 to 2004, Mr. Davis worked in the San Francisco
office of Paul Hastings LLP (formerly Paul, Hastings, Janofsky & Walker
LLP), where he served on the firms national securities practice committee. Mr.
Davis has represented public and private companies and venture capital and
investment banking firms in a wide range of corporate and securities matters,
mergers and acquisitions, strategic alliance matters, and intellectual
property-related business transactions. His experience involves a variety of
industries, including biotechnology and life sciences. Mr. Davis received a B.A.
in political economy from the University of California, Berkeley, and a J.D.
from the University of San Francisco School of Law.
|
Henry J.
Fuchs, M.D., joined BioMarin in March
2009, and currently serves as our President of Worldwide Research &
Development. |
From March 2009 to December 2009, Dr.
Fuchs served as our Senior Vice President and Chief Medical Officer. From
September 2005 until December 2008, Dr. Fuchs served as Executive Vice President
and Chief Medical Officer for Onyx Pharmaceuticals, a biopharmaceutical company.
Dr. Fuchs served as Chief Executive Officer of Ardea Biosciences, Inc. from
January 2003 until June 2005. Dr. Fuchs first joined Ardea Biosciences, Inc. as
Vice President, Clinical Affairs in October 1996 and was appointed President and
Chief Operating Officer in November 2001. From 1987 to 1996, Dr. Fuchs held
various positions at Genentech, Inc. where, among other responsibilities, he led
the clinical program that resulted in the approval of Pulmozyme, a therapeutic
for cystic fibrosis. Dr. Fuchs was also responsible for the Phase III
development program that led to the approval of Herceptin to treat metastatic
breast cancer. Dr. Fuchs received an M.D. degree from George Washington
University and a B.A. degree in biochemical sciences from Harvard University.
Dr. Fuchs is currently a director of Mirati Therapeutics, a public
biopharmaceutical company, and Genomic Health, Inc., a public molecular
diagnostics company. Dr. Fuchs was on the Board of Directors of Ardea
Biosciences, Inc. from 1996 until its acquisition by AstraZenaca PLC in
2012.
38 |
|
|
2017 Proxy
Statement |
Table of Contents
|
Brian R.
Mueller joined BioMarin in December 2002 and currently serves as
our Senior Vice President, Finance and Chief Accounting
Officer. |
Mr. Mueller has served as our Chief
Accounting Officer since March 2011. From March 2014 to August 2016, Mr. Mueller
served as our Group Vice President, Corporate Controller. From March 2009 to
March 2014, Mr. Mueller served as our Vice President, Corporate Controller. Mr.
Mueller is a member of the board of directors of Anthera Pharmaceuticals, Inc.,
a public biopharmaceutical company, where he also serves as Chairman of the
Audit Committee. Prior to joining BioMarin in 2002, Mr. Mueller worked for KPMG
as a senior manager in the firms audit practice. Mr. Mueller joined KPMG after
Arthur Andersen LLP ceased operations in June 2002, prior to which he spent
seven years with Arthur Andersen LLP in the firms audit and business advisory
services practice. Mr. Mueller received a B.S. in Accountancy from Northern
Illinois University in DeKalb, Illinois, and is a member of the American
Institute of Certified Public Accountants.
|
Daniel
Spiegelman joined BioMarin in May 2012 and currently serves as
our Executive Vice President and Chief Financial
Officer. |
From May 2009 until May 2012, Mr.
Spiegelman served as a consultant to provide strategic financial management
support to a portfolio of public and private life science companies. From 1998
to 2009, he served as Senior Vice President and Chief Financial Officer of CV
Therapeutics, Inc. where he was responsible for finance, accounting, investor
relations, business development, and information systems. From 1991 to 1998, Mr.
Spiegelman served in various roles at Genentech, Inc., most recently as
Treasurer. He received a B.A. from Stanford University and an M.B.A. from the
Stanford Graduate School of Business. Mr. Spiegelman is currently a director of
Cascadian Therapeutics, Inc., a public biotechnology company.
Table of Contents
Proposal No.
Three: Advisory Vote on Frequency of Advisory Vote on Executive
Compensation |
The Dodd-Frank Wall Street Reform and
Consumer Protection Act (Dodd-Frank Act) and Section 14A of the Exchange Act
enable the Companys stockholders, at least once every six years, to indicate
their preference regarding how frequently the Company should solicit a
non-binding advisory vote on the compensation of the Companys
NEOs as
disclosed in the Companys proxy statement (commonly known as the
say-on-frequency vote). Currently, consistent with the preference expressed by
our stockholders at the May 2011 Annual Meeting, the policy of the Board is to
solicit a non-binding advisory vote on the compensation of our NEOs every year.
In accordance with the Dodd-Frank Act, the Company is again asking stockholders
to indicate whether they would prefer an advisory vote every year, every other
year or every three years. Alternatively, stockholders may abstain from casting
a vote. For the reasons described below, the Board recommends that the
stockholders select a frequency of one year.
Based on the Boards current review of the
benefits and consequences of each alternative, the Board has determined that an
annual advisory vote on executive compensation is the best approach for the
Company. In formulating its recommendation, the Board considered that an annual
advisory vote on executive compensation will allow stockholders to provide
direct and timely input on the Companys compensation philosophy, policies and
practices. Additionally, an annual advisory vote on executive compensation is
consistent with the Companys policy of seeking input from, and engaging in
discussions with, our stockholders on executive compensation and corporate
governance matters.
Accordingly, the Board is asking
stockholders to indicate their preferred voting frequency by voting for one, two
or three years or abstaining from voting on this proposal. While the Board
believes that its recommendation is appropriate at this time, stockholders are
not voting to approve or disapprove that recommendation, but are instead being
asked to indicate their preferences, on an advisory basis, as to whether the
non-binding advisory vote on the approval of the Companys executive officer
compensation practices should be held every year, every other year or every
three years. The option among those choices that receives the votes of the
holders of a majority of shares cast by the holders of shares present in person
or represented by proxy and entitled to vote at the Annual Meeting will be
deemed to be the frequency preferred by the stockholders.
The Board and the Compensation Committee
value the opinions of the stockholders in this matter and, to the extent there
is any significant vote in favor of one frequency over the other options, even
if less than a majority, the Board will consider the stockholders concerns and
evaluate any appropriate next steps. However, because this vote is advisory,
and therefore, not binding on the Board of Directors or the Company, the
Board may decide that it is in the best interests of the stockholders that the
Company hold an advisory vote on executive compensation on a different frequency
than the option preferred by the stockholders. The vote will not be construed to
create or imply any change or addition to the fiduciary duties of the Company or
the Board.
THE BOARD OF DIRECTORS
RECOMMENDS A VOTE IN FAVOR OF 1 YEAR ON PROPOSAL NO.
THREE. |
40 |
|
|
2017 Proxy
Statement |
Table of Contents
Proposal No.
Four: Advisory Vote on Executive Compensation |
Under the Dodd-Frank Act and Section 14A
of the Exchange Act, the Companys stockholders are entitled to vote to approve,
on a non-binding advisory basis, the compensation of the Companys NEOs as
disclosed in this Proxy Statement in accordance with the SEC rules (commonly
known as the say-on-pay vote). This vote is not intended to address any
specific item of compensation, but rather the overall compensation of the
Companys NEOs and the philosophy, policies and practices described in this
Proxy Statement. As noted above, at the May 2011 Annual Meeting, consistent with
the Companys recommendation, stockholders holding a majority of our shares
voted to recommend that the Company hold an annual advisory vote on the
compensation of the NEOs. The Company has acted in accordance with the 2011 vote
and intends to continue to hold an annual advisory vote on the compensation of
the NEOs consistent with Proposal No. Three: Advisory Vote on Frequency of
Advisory Vote on Executive Compensation.
The compensation of the Companys NEOs
subject to the vote is disclosed in the Compensation Discussion and Analysis
section of this Proxy Statement, the compensation tables, and the related
narrative disclosure contained in this Proxy Statement. As discussed in these
disclosures, the Company believes that its compensation philosophy is to provide
competitive overall compensation that attracts and retains top performers. To
achieve these goals, our compensation program is structured to:
● |
provide total compensation and
compensation elements that are competitive with those companies that are
competing for available employees; |
● |
provide a mix of compensation that
offers (i) a market competitive base compensation, with a potential to
earn additional amounts based on achievement of defined corporate goals,
which are generally targeted to be achieved
within 12 months, and (ii) the opportunity to share in the long-term
growth of our company through equity compensation; and
|
● |
reward exceptional performance by
individual employees. |
Accordingly, the Board is asking the
stockholders to indicate their support for the compensation of the Companys
NEOs as described in this Proxy Statement by casting a non-binding advisory vote
FOR the following resolution:
RESOLVED, that the Companys stockholders
hereby approve, on an advisory basis, the compensation of the Companys Named
Executive Officers, as disclosed in this Proxy Statement pursuant to the
compensation disclosure rules of the SEC, including the Compensation Discussion and Analysis, compensation tables and narrative discussion and any related
material.
The Compensation Discussion and Analysis
section of this Proxy Statement contains more details on the Companys executive
compensation and we urge you to read it carefully before casting your vote on
this proposal. Because the vote is advisory, it is not binding on the Company,
the Board or the Compensation Committee of the Board. Nevertheless, the views
expressed by the stockholders, whether through this vote or otherwise, are
important to our management, the Board and the Compensation Committee and our
management, the Board and Compensation Committee all intend to consider the
results of this vote in making determinations in the future regarding executive
compensation arrangements and the Companys executive compensation principles,
policies and procedures.
Advisory approval of this proposal
requires the vote of a majority of shares cast by the holders of shares present
in person or represented by proxy and entitled to vote at the Annual
Meeting.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF
PROPOSAL NO. FOUR. |
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Proposal No. Four:
Advisory Vote on Executive
Compensation |
Executive
Compensation
The Compensation Committee believes
that our executive compensation program is appropriately designed and reasonably
based on the primary goal of providing appropriate incentives to attract and
retain the executive talent necessary to advance our business of developing and
commercializing innovative biopharmaceuticals for serious diseases and medical
conditions and to increase stockholder value.
The Compensation Committee also
believes that our executive compensation program is responsible in that it both
encourages executive officers to work for meaningful stockholder return and
reflects a pay-for-performance philosophy, without encouraging our executive
officers to assume excessive risks or resulting in excessive pay
practices.
2016
Business Highlights
In 2016, we achieved record revenue,
with our commercial business breaking the $1.0 billion mark for the first time,
while we concurrently made important advancements in our pipeline
programs.
Our key accomplishments in 2016
included:
● |
achieving 26% growth in total
BioMarin revenue as compared to 2015, from $890 million to $1.12
billion; |
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achieving 55% in revenue growth
from Vimizim sales, earning $354 million in 2016 compared to $228 million
in 2015; and |
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earning $348 million in revenue
from Kuvan in 2016 compared to $239 million in 2015, following the
transition of the global rights to Kuvan for the treatment of PKU from
Ares Trading, S.A. (Merck Serono), with the exception of Kuvan in
Japan. |
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Proposal No. Four:
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Compensation |
In 2016, key product development
accomplishments included the following:
INVESTIGATIONAL GENE THERAPY
BMN 270
In January 2017, we announced an
update to our positive interim results of an open-label Phase 1/2 study of
BMN 270 in patients with severe hemophilia A (less than 1% expressed as a
percentage of normal factor activity in blood). A total of nine patients
with severe hemophilia A received a single dose of BMN 270, seven of whom
were treated at the highest dose. As of the December 9, 2016 data cutoff,
of those seven patients treated at the highest dose, six continued to have
Factor VIII levels above 50% (within the normal range), and the seventh
continued to have levels above 15% (within the mild hemophilia range). For
the six patients at the high dose and previously on a Factor VIII
prophylactic regimen, the mean annualized bleeding rate dropped 91% and
the mean annualized Factor VIII infusions fell 98%. |
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PHASE 3
STUDY
Vosoritide
In December 2016, we initiated
the pivotal Phase 3 study of vosoritide, an analog of C-type Natriuretic
peptide, in children with achondroplasia, the most common form of
dwarfism. The Phase 3 study is a randomized, placebo-controlled 12-month
treatment study in approximately 110 children with achondroplasia, ages
5-14. In October 2016, we provided an update on our Phase 2 study of
vosoritide. Results from eight children in cohort 4, who completed six
months of daily dosing at 30 µg/kg/daily, experienced a 46% or 2.1 cm/year
increase in mean annualized growth velocity from baseline. |
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EMA
VALIDATED THE MARKETING AUTHORIZATION APPLICATION
(MAA)
Brineura
In September 2016, we announced
that the European Medicines Agency (EMA) validated our Marketing
Authorization Application (MAA) for Brineura, an investigational therapy
to treat children with CLN2 disease, a form of Batten disease. Validation
of the MAA confirmed that the submission was accepted and started the
formal review process by the EMAs Committee for Human Medicinal Products
(CHMP). On April 21, 2017, the CHMP adopted a positive opinion for our MAA for Brineura. The final decision from the European Commission is expected in the second quarter of 2017. |
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FDA ACCEPTED
SUBMISSION OF A BIOLOGICS LICENSE APPLICATION (BLA)
Brineura
In July 2016, we announced that
the Food and Drug Administration (FDA) accepted for review the submission
of a Biologics License Application (BLA) for Brineura. During their
initial review of the BLA, the FDA requested, and we provided, updated
efficacy data from our ongoing extension study. In September 2016, the FDA
designated this submission as a major amendment to the application, thus
extending the Prescription Drug User Fee Act (PDUFA) target action date by
three months to April 27, 2017. |
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PHASE 3
PRISM-2 STUDY
Pegvaliase
In March 2016, we announced
pivotal results for our Phase 3 PRISM-2 study with pegvaliase for the
reduction of blood phenylalanine (phe) in patients with PKU demonstrating the
primary endpoint of change in blood phe compared with placebo
(p<0.0001) had been met. The treatment effect demonstrated in this
study represents an approximately 62% improvement in blood phe compared to
placebo. Based on the supportive data results, we plan to submit a BLA to
the FDA in the second quarter of 2017. |
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Proposal No. Four:
Advisory Vote on Executive
Compensation |
These and other recent accomplishments
have contributed to the creation of significant long-term value for our
stockholders. Our strong performance is reflected in the appreciation of our
stock price, which, despite a short-term decrease of approximately 21% over the
one-year period ended December 31, 2016, has increased approximately 18% and
141% over the three- and five-year periods ended December 31, 2016,
respectively. For more information, see Part II, Item 5, Performance Graph in
our Form 10-K for the year ended December 31, 2016, as filed with the SEC on
February 27, 2017.
Highlights of Compensation
Policies and Practices
Our Compensation Committee and Board
have implemented compensation policies and practices designed to enhance
governance of our executive compensation program and to further our compensation
objectives. These policies and practices include:
Annual Advisory Say-on-Pay Vote |
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Our Board elected to hold an
annual advisory say-on-pay vote. The Compensation Committee considers the
outcome of the advisory vote in making compensation
decisions. |
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Compensation Committee Oversight;
Executive Sessions |
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The Compensation Committee
regularly meets in executive sessions without management
present. |
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Features of the 2017 Plan |
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Our 2017 Plan, which is presented
to the stockholders for approval as Proposal Five in this Proxy Statement,
contains a number of features that represent good corporate governance, as
listed in more detail on page 71 of this Proxy Statement under the
heading, Key Plan Features Representing Corporate Governance Best
Practices. These features include a limit on non-employee director
compensation and restrictions on payment of dividends, among many other
favorable features. |
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Independence |
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The Compensation Committee is
composed solely of Independent Directors. |
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Independent
Compensation Consultant |
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The Compensation Committee has
engaged an independent compensation consultant to advise it on topics
related to the Board and NEO compensation. The independent compensation
consultant reports directly to the Compensation Committee, which has the
sole authority to direct the consultants work. |
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Policy Against Tax Gross Ups |
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In March 2015, the Compensation
Committee formally adopted a policy against granting tax gross ups to
executives going forward. In December 2016, the CEO of the Company
voluntarily forfeited his right to income tax gross-up payments in
connection with a change in control as provided for in his then current
employment agreement. |
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Policy for Recoupment of
Incentive Compensation |
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Our Policy for Recoupment of
Incentive Compensation (Recoupment Policy) provides for the recoupment by
the Company of certain incentive compensation paid to current or former
executive officers in the event the Company is required to prepare an
accounting restatement of its financial statements due to the Companys
material noncompliance with any financial reporting requirement under the
securities laws. The Recoupment Policy can be found in the Corporate
Governance section of the Investors section of our website at
www.bmrn.com.
Information on our website is NOT incorporated by reference in this Proxy
Statement. |
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Prohibition Against Hedging and Pledging
of Securities |
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Our trading policy prohibits
executives from engaging in short sales, transactions in put or call
options, hedging transactions or other inherently speculative transactions
in our stock or engaging in excessive margin activities. |
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Prohibit Option Repricing |
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Our equity incentive plans
prohibit option repricing without stockholder
approval. |
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Proposal No. Four:
Advisory Vote on Executive
Compensation |
Risk Management |
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Our executive compensation
policies are structured to discourage inappropriate risk-taking by our
executives. The Compensation
Risks located after this Compensation Discussion and Analysis describes the Compensation Committees assessment
that the risks arising from our company-wide compensation programs are
reasonable, in the best interest of our stockholders, and not likely to
have a material adverse effect on BioMarin. |
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Securities Trading Policy |
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We maintain a comprehensive
securities trading policy which provides, among other things, that our
employees who possess material non-public information regarding us may not
disclose, or trade while in possession of, such information or buy or sell
our securities during any designated blackout period. Individuals
classified as Designated Insiders (which include our NEOs) may not buy
or sell our securities at any time without prior approval, except for
sales under approved Rule 10b5-1 trading plans. |
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Stock Ownership
Guidelines |
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We have established stock
ownership guidelines for our executives in order to increase the linkage
between the interests of executives and those of
stockholders. |
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Transparent Equity Granting Process and Practices |
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The Compensation Committee grants
equity awards annually to eligible employees according to a regular,
pre-set schedule. |
Compensation Committee
Report(1)
The Compensation Committee has reviewed
and discussed the Compensation Discussion and
Analysis contained herein with management,
and based on such review and discussions, the Compensation Committee has
recommended to the Board that the Compensation
Discussion and Analysis be included in this
Proxy Statement and incorporated into BioMarins Annual Report on Form 10-K for
the year ended December 31, 2016.
Respectfully submitted on April 10,
2017 by the members of the Compensation Committee of the Board of
Directors:
Michael Grey, Chair
Kathryn E.
Falberg
Alan J. Lewis, Ph.D.
David E.I.
Pyott, M.D. (Hon.)
(1) |
The material in this report is
not deemed soliciting material, is not deemed filed with the SEC, is
not subject to Regulation 14A or 14C or to the liabilities of Section 18
of the Exchange Act, and is not to be incorporated by reference into any
filing of BioMarin under the Securities Act or the Exchange Act, whether
made before or after the date hereof and irrespective of any general
incorporation language in any such filing. |
Compensation Risk Assessment
We believe that risks arising from our
compensation policies and practices for our employees are not reasonably likely
to have a material adverse effect on the Company. In addition, the Compensation
Committee believes that the mix and design of the elements of executive
compensation do not encourage management to assume excessive risks.
The Compensation Committee, with
assistance of its independent compensation consultant, extensively reviewed the
elements of executive compensation to determine whether any portion of executive
compensation encouraged excessive risk taking and concluded:
● |
significant weighting towards
long-term incentive compensation discourages short-term risk
taking; |
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for most employees, base salary
makes up a significant portion of compensation; |
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the mix of short-term and
long-term compensation (base salary, annual cash incentive, equity grants)
for all employees is consistent with industry norms; |
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goals are appropriately set to
avoid targets that, if not achieved, result in a large percentage loss of
compensation; and |
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equity ownership guidelines
discourage excessive risk taking. |
Furthermore, as described in the
Compensation Discussion and
Analysis section of this Proxy Statement,
compensation decisions include subjective considerations, which restrain the
influence of formulae or objective factors on excessive risk taking.
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Proposal No. Four:
Advisory Vote on Executive
Compensation |
Compensation
Discussion and Analysis
The following Compensation Discussion
and Analysis provides information about our 2016 compensation program for the
individuals who served as our principal executive officer, principal financial
officer and three other most highly-compensated executive officers as of
December 31, 2016 (the Named Executive Officer or the NEOs), each of whose
compensation is set forth in the Summary
Compensation Table and the other
compensation tables included in this Proxy Statement. Our NEOs for fiscal year
2016 are
● |
Jean-Jacques Bienaimé, our Chief
Executive Officer; |
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Daniel Spiegelman, our Executive
Vice President and Chief Financial Officer; |
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Jeff Ajer, Executive Vice
President, our Chief Commercial Officer; |
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Robert Baffi, Executive Vice
President, our Technical Operations; and |
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Henry Fuchs, our President,
Worldwide Research & Development. |
Compensation Objectives and Philosophy
We believe that the leadership of our
current executive team has been instrumental to our success in 2016 and prior
years, and that an executive compensation program that attracts, motivates and
helps retain key executives, including our NEOs, is critical to the success of our business and creating long-term
stockholder value. Our compensation program is structured to achieve the
following main objectives:
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Market
Competitiveness and Retention: provide total compensation and
compensation elements that are competitive with those companies with which
we compete for talent. |
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Balance
Long-Term and Short-Term Perspectives: strike an appropriate balance between short- and long-term
perspectives by including a mix of compensation that includes (i) a
meaningful base compensation, with a potential to earn an annual cash
incentive based in part on achievement of defined corporate goals, which
are generally targeted to be achieved within 12 months, and (ii) the
opportunity to share in the long-term growth of our company through equity
compensation. |
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Pay-for-Performance:
reward exceptional performance by individual employees. |
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Stockholder
Alignment: closely align the
interests of executive officers and our stockholders. |
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To realize these objectives, we utilize
a balance of compensation elements and benefits, which are summarized in the
table below and discussed in detail under Elements of Compensation Package.
The focus of our compensation program is on total
direct compensation opportunity (base salary, annual incentive compensation and
long-term incentive compensation), with an explicit role for each
element.
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Compensation |
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Purpose |
Compensation Element |
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Market Competitiveness and
Retention |
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Balance Long-Term and
Short-Term Perspectives |
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Pay-for- Performance |
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Stockholder Alignment |
Base Salary |
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Annual Cash
Incentive |
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Equity Grants |
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Limited Perquisites and
Other Personal Benefits |
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Potential Severance
Benefits |
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The Compensation Committee considered
each of our compensation objectives in determining the 2016 compensation of our
executive officers, including the NEOs, as discussed in greater detail below. We
provide our NEOs with competitive annual cash compensation in the form of salary
and annual incentive, but believe that a majority of our NEO compensation should
be earned through long-term, equity-based incentives. Our focus on long-term,
equity-based incentives is appropriate because of the lengthy time period
required to develop pharmaceutical products, as well as the time required for
pharmaceutical products to obtain regulatory approval on a worldwide basis and
to reach peak sales.
The Compensation Committee focuses on
providing NEOs and executive officers with competitive compensation based upon
all available factors, including the experience of the NEO, competitive market
data and individual and corporate performance as opposed to targeting
compensation to a specific market percentile. Using this approach, the
Compensation Committee and the Board believes that they can efficiently set NEO
compensation to appropriately compensate each individual based on his or her skill and performance and/or expected
future contribution to the Companys business, and the performance of the
Company as a whole.
In 2016, the compensation of our Chief
Executive Officer, Mr. Bienaimé (whom we may also refer to in this discussion as
the Chief Executive Officer) and other NEOs consisted primarily of
performance-based cash compensation and long-term incentives. For 2016, at risk,
performance-based compensation (annual cash incentive and equity awards)
accounted for 94% of the total direct compensation of our Chief Executive
Officer and 89% of the average total direct compensation of our other NEOs. In
addition, during 2016, 86% of the total direct compensation of our Chief
Executive Officer and 81% of the average total direct compensation of our other
NEOs was delivered through long-term incentives (option awards and RSUs). Both
in 2016 and in the three-year period ended December 31, 2016, the year-over-year
increases in NEO compensation were principally attributable to increases in
long-term incentives (option awards and RSUs).
2016 CEO Compensation
Mix(1) |
Other NEOs Compensation
Mix(1)(2) |
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(1) |
Percentages calculated based on
amounts set forth in the Summary
Compensation Table in this Proxy
Statement, including the Target Payout amounts in footnote (2) to such table. Percentages rounded to the nearest whole number, and therefore
total may not equal 100%. The amounts under All Other Compensation in the Summary Compensation Table in this Proxy Statement are not represented in the chart because such amounts as a percentage of total compensation round down to zero. |
(2) |
Percentages calculated based on
sum of all other NEOs compensation. |
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Proposal No. Four:
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Compensation |
Our
Decision-Making Process
The implementation of our compensation
philosophy is carried out under the supervision of the Compensation Committee.
The Compensation Committee charter requires that the Compensation Committee meet
when deemed necessary or desirable by the Committee or its Chair, generally at
least four times per year. The agenda for each meeting is usually developed by
the Chair of the Compensation Committee, in consultation with our Chief
Executive Officer, the head of Human Resources, our General Counsel and the
Compensation Committees independent compensation consultant (the Compensation
Consultant). The Compensation Committee meets regularly in executive session.
However, Mr. Bienaimé, our Chief Executive Officer, Mr. Davis, our Executive
Vice President, General Counsel and Secretary,
and Mr. Richard Ranieri, our Executive Vice President, Human Resources and
Corporate Affairs, in addition to the Compensation Consultant, regularly attend
portions of the Compensation Committee meetings for the purpose of providing
analysis and information to assist the Compensation Committee with its
recommendations on various human resources and compensation matters. The members
of management generally do not participate in the executive sessions of the
Compensation Committee unless invited by the Compensation Committee to provide
specific information during closed session. No individual member of management
is present for votes related to such individuals compensation.
Compensation Committee
The duties and responsibilities of the
Compensation Committee are set forth above in the Information Regarding Committees of the Board of
Directors section of this Proxy Statement
and detailed in the charter of the Compensation Committee. The full text of the
Compensation Committee Charter, as amended in June 2016, can be found in the
Corporate Governance section of the Investors
section of our website at www.bmrn.com. Information on our
website is NOT incorporated by reference in this Proxy Statement. The
composition of the Compensation Committee is determined by our Board, after a
recommendation by the CGN Committee.
Compensation Consultant
Pursuant to its charter, the
Compensation Committee is authorized to select and retain independent advisors
and counsel to assist it with carrying out its duties and responsibilities. We
have provided appropriate funding to the Compensation Committee to do so. The
Compensation Consultant reports directly to the Compensation Committee, which
retains sole authority to direct the work and employ the Compensation
Consultant. The Compensation Committee regularly reviews the services provided
by the Compensation Consultant and believes that at all times Compensation
Consultant was engaged by the Compensation Committee, such engagement was
consistent with NASDAQ listing standards and did not raise any conflict of
interest. The Compensation Committee continues to monitor the independence of
its Compensation Consultant on a periodic basis.
Starting in February 2014, the
Compensation Committee engaged Towers Watson (now known as Willis Towers Watson
following a merger in January 2016) as its Compensation Consultant. In July
2016, the Willis Towers Watson individual consultant that led the consulting
team serving the Compensation Committee left the firm. Upon this change in
leadership of the Willis Towers Watson team supporting BioMarin, the
Compensation Committee conducted a full search
for a new Compensation Consultant. As a result of such search, in August 2016,
Mercer LLC was selected and retained as the Compensation Consultant and has
served in such capacity since that time. The Compensation Consultant conducts
analysis and provides advice on, among other things, the appropriate peer group,
executive compensation for our Chief Executive Officer and other executive
officers, equity compensation, and compensation trends in the biotechnology
industry. As part of its analysis, the Compensation Consultant collects and
analyzes compensation information from a comparative group of biotechnology
companies or peer group approved by the Compensation Committee. The
Compensation Committee evaluates the criteria used in establishing the peer
group at least annually, to ensure that it appropriately represents the
companies competing with us to attract and retain talent and represents a
sufficiently broad group to provide meaningful data trends across multiple
years. The Compensation Committee seeks input from management in addition to the
Compensation Consultant to ensure the peer group is consistent with our current
business model. The peer group used for 2016 is discussed in the
Compensation Discussion and
Analysis section of this Proxy
Statement.
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Proposal No. Four:
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Compensation |
In March 2017, each of Willis Towers
Watson and Mercer affirmed to the Compensation Committee that the total fees
paid to it by BioMarin do not represent a significant concentration of its
revenue for its most recent fiscal year, that it had policies in place to
mitigate conflicts of interest from arising, that it was not aware of any
business or personal relationships between the
members of its consulting team serving BioMarin and any member of the
Compensation Committee, that it was not aware of any member of its consulting
team serving BioMarin owning any stock of BioMarin, and that it is not aware of
any business or personal relationships between the Compensation Consultant or
the Companys executive officers.
Compensation Adjustments and Peer Group Process
The implementation of our compensation
philosophy is carried out under the supervision of the Compensation Committee.
The compensation for our Chief Executive Officer is approved by our Board, after
the Compensation Committee provides its analysis and recommendation. The
Compensation Committee has direct responsibility for establishing the
compensation for the direct reports to the Chief Executive Officer, including
all of our executive officers. To assist the Compensation Committee, the Chief
Executive Officer and the Executive Vice President, Human Resources and
Corporate Affairs make recommendations to the Compensation Committee as to
specific elements (e.g., salary, annual cash incentive, equity awards) of
compensation. Management, under the guidelines and policies established by the
Compensation Committee, makes decisions on all aspects of compensation for
non-executive officer employees.
The Compensation Committee conducts a
holistic analysis designed to provide competitive compensation necessary to
attract and retain qualified executives, while focusing on the qualification and
performance of individual executives and the performance of the Company as a
whole.
We generally review our compensation
practices on an annual basis over the course of several meetings of the
Compensation Committee and the Board. The first step in the process is that the
Compensation Committee, with the support of the Compensation Consultant and
management, reviews trends in biotechnology compensation practices and reviews
and approves the list of peer companies used in the later stages of the process.
As part of its analysis, for 2016, the Compensation Consultant collected and
analyzed compensation information from a comparative group of biotechnology
companies, or peer group, approved by the Compensation Committee. The
Compensation Committee evaluates the criteria used in establishing the peer
group at least annually to ensure that it appropriately represents the companies
competing with us to attract and retain talent. The Compensation Committee seeks
input from management in addition to the Compensation Committees independent
compensation consultant to ensure the peer group is consistent with our current
business model. In order to ensure independence and candid communication, the
Compensation Committee regularly meets with the Compensation Consultant in
executive sessions without management present.
The list of companies in the peer group
is approved based on various factors including size, market capitalization,
stage of development, product revenue and product focus. Our criteria used to
select the peer group we used in 2016 included commercial biotechnology and
specialty pharmaceutical companies:
● |
that have business models with a
therapeutic focus and development stage product
candidates; |
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with revenue generally between
$250 million and $2.5 billion; and |
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located predominantly in major
biotechnology centers. |
The Compensation Committee sets the
ranges for the inclusion criteria to ensure that it will capture a broad set of
companies. The Compensation Committee believes that this provides the best
long-term trend data and minimizes year-to-year changes caused by excessive
numbers of companies being added or removed due to acquisitions or product
successes or failures or other major corporate events at member companies. The
following table presents the peer group used in 2016 (the 2016 Peer Group),
which is unchanged from the peer group used in 2015.
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Proposal No. Four:
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Compensation |
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Alexion Pharmaceuticals,
Inc. Alkermes, Inc. Alnylam
Pharmaceuticals, Inc. Endo International plc. Incyte
Corporation |
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Ionis Pharmaceuticals Jazz
Pharmaceuticals plc Medivation, Inc. Regeneron Pharmaceuticals,
Inc. |
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Seattle Genetics, Inc. Shire
plc United Therapeutics
Corporation Vertex Pharmaceuticals Incorporated |
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In addition to the analysis of the
compensation data from the peer group, the Compensation Committee also reviews
the compensation levels and disclosed program design for executives of Amgen,
Inc., Biogen Inc., Celgene Corporation, and Gilead Sciences, Inc., as we
regularly compete for employees with these companies, particularly for senior
positions. However, we generally do not utilize the compensation data from these
companies when making pay decisions directly impacting the Chief Executive
Officer or other NEO positions.
After the list of peer companies is
approved, management presents the Compensation Committee with recommendations
regarding proposed adjustments to compensation elements and a variety of
supporting data, including comparative compensation information from the
approved peer group and the Radford Global Life Sciences Compensation survey, as
well as additional survey sources from the Compensation Consultant. This is
presented individually for executive officers, including the NEOs, and based on
classes of position for all other employees.
Management and the independent
compensation consultant each include significant supporting data with the
presentation. These recommendations are discussed with and without management
present and are discussed with the independent compensation consultant. The
Compensation Committee then determines what, if any, adjustments to the
compensation elements are appropriate for employees other than the Chief
Executive Officer.
The Compensation Committee also reviews
the market information provided by the independent compensation consultant,
considers the Chief Executive Officers performance and experience and makes
recommendations for adjustments to the Chief Executive Officers compensation.
These discussions are conducted in executive sessions without involvement by
management. The Compensation Committee then presents the recommendations for the
Chief Executive Officer to the Board for consideration and approval. The Board
must approve each of the Chief Executive Officers individual compensation
elements.
Recent
Say-on-Pay and Stockholder Feedback
Our stockholders views and opinions on
our executive compensation practices are extremely important to us. As a
steward of
good corporate governance, our Compensation Committee evaluates the design of
our executive compensation program based on market conditions, stockholder
views, and other governance considerations. We regularly engage with our
stockholders through open dialogue and direct individual communication on topics
related to the business, financial performance, corporate governance and
compensation. Stockholder feedback is important, and the information we glean
from these engagements is highly valued.
At our Annual Meeting of stockholders on
June 6, 2016, our stockholders had the opportunity to cast an advisory
say-on-pay vote on our executive compensation. Our stockholders overwhelmingly
approved the compensation of our NEOs by 87% of total votes cast with respect to
the proposal. As a result of the say-on-pay vote and the feedback we received
from our top 20 stockholders in 2015, the Compensation Committee generally
continued to apply the same effective principles and philosophy it has used in
previous years in determining executive compensation. The Compensation Committee
considered this feedback in increasing the performance-based RSU component in
the 2016 annual equity grant (from 20% to 25% of the total equity grant value)
as a regular part of the long-term incentive compensation for our NEOs and other
executive officers.
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2017 Proxy
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Table of
Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
Elements of
2016 Compensation
Our executive compensation program
consists of the following three principal components:
|
|
|
|
Base
Salary. Our Compensation Committee
reviews and determines base salary rates for our executive officers each
year, which are then effective beginning in March. Base salary rates are
determined, in consultation with the Compensation Committees independent
compensation consultant, based on each executive officers
responsibilities, individual performance, achievement of corporate goals
and a review of competitive salary and total compensation
data. |
|
|
+ |
|
|
Annual Cash
Incentive. The annual cash incentive
program is based on achievement of corporate goals and an individual
performance assessment. The details of this program are discussed
below. |
|
|
+ |
|
|
Equity
Grants. Our executive officers are
eligible to receive equity grants, which serve as long-term incentives to
ensure that a portion of their total compensation is linked to the
Companys long-term success, thereby aligning their incentive compensation
with the interests of our stockholders. |
|
|
|
|
The Compensation Committee uses its
judgment to establish for each NEO a mix of current, short-term and long-term
incentive compensation, and cash and non-cash compensation, that it believes
appropriate to achieve the goals of our executive compensation program and our
corporate objectives as described above. Generally, the percentage of
compensation at risk, either in the form of annual cash incentive or
equity compensation, is higher for more senior
employees than for those with more limited responsibility. Our executive
officers have the highest percentage of their total compensation at risk and the
highest percentage of total compensation allocated to equity compensation. We
believe that this is appropriate as the more senior employees have more
influence on whether or not we achieve our strategic imperatives and long-term
goals.
NEO INCREASING PERFORMANCE PAY
SERVICE-BASED V. PERFORMANCE-BASED EQUITY AWARDS
Base
Salary
General Principles
We provide base salaries to our NEOs
to compensate them with a fair and competitive base level of compensation for
services rendered during the year. Base salaries for our NEOs are intended to be
competitive with those received by other individuals in similar positions at the
companies with which we compete for talent, taking into consideration that
certain of our executive officers have larger scopes of responsibilities than
the market data positions. Base salaries are initially established at the time
the NEO is hired based on individual experience, skills and expected
contributions, the Compensation Committees understanding of what executives in similar positions at other peer
companies were being paid at such time and are also the result of negotiations
with certain executives during the hiring process.
The base salary of each NEO is
reviewed annually and may be adjusted to reflect market conditions, the NEOs
performance during the prior year, the financial position of the
company and any change in scope of an NEOs responsibilities. We believe that a
competitive base salary is a necessary element of any compensation program that
is designed to attract and retain talented and experienced executives. We also
believe that attractive base salaries can motivate and reward executives for
their overall performance.
Table of
Contents
Proposal No. Four:
Advisory Vote on Executive
Compensation |
Merit-based increases in base salary for
all of our executive officers, other than our Chief Executive Officer, are
approved by the Compensation Committee based upon a recommendation from the
Chief Executive Officer. Any merit-based increase in base salary for our Chief
Executive Officer is approved by the Board and based upon an assessment of his
performance and a recommendation by the Compensation Committee and a review by
the Compensation Committee of the base salary of chief executive officers in our
peer group.
2016 Salaries
In reviewing our 2015 performance and its
impact on salary increases in 2016, the Compensation Committee considered: our
efforts in advancing our development programs, particularly our achievements in
advancing BMN 270, vosoritide and Brineura
(formerly referred to as BMN 190); extraordinary business development activities
like selling our rights to talazoparib (formerly referred to as BMN 673) for the
treatment of certain cancers to Medivation, Inc. and acquiring all global rights
to Kuvan and pegvaliase for the treatment of PKU from Ares Trading, S.A. (Merck
Serono), with the exception of Kuvan in Japan; and our continued revenue growth
and expense control. The Compensation Committee also considered budget
constraints as we continue to aggressively invest our cash flow from operations
into our development programs, and the competitive market for recruiting top
talent in our industry.
Based on the Companys 2015 performance,
the Board and the Compensation Committee approved the following increases to the
base salaries of Mr. Bienaimé and our other NEOs.
|
Salary Adjustments Effective March
2016 |
Name |
|
2016 Salary($) |
|
Increase from 2015 |
Jean-Jacques Bienaimé,
Chief Executive Officer |
|
1,050,000 |
|
6.6% |
Daniel Spiegelman,
Executive Vice President and Chief Financial Officer |
|
535,000 |
|
4.9% |
Jeff Ajer, Executive Vice
President, Chief Commercial Officer |
|
500,000 |
|
11.1% |
Robert Baffi, Executive
Vice President, Technical Operations |
|
500,000 |
|
9.9% |
Henry Fuchs, President,
Worldwide Research & Development |
|
600,000 |
|
5.3% |
The Board determined that higher base
salary increases in 2016 relative to the other NEOs were appropriate for Mr.
Ajer and Dr. Baffi in light of their extraordinary efforts in 2015, projected
workloads and responsibilities in 2016 and competitive landscape for their
positions. With respect to Mr. Ajer, the Board determined that the exceeding of
revenue targets for 2015 and the increasing scope of his responsibilities as our
commercial operations continue to grow warranted his relatively larger base
salary increase. With respect to Dr. Baffi, the Board determined that his
increasing scope of responsibilities relating to the manufacture of our pipeline
and commercial products, including expanded manufacturing operations in our
Shanbally, Cork, Ireland facility, justified his relatively larger base salary
increase.
2017 Salaries
In 2016, the Compensation Committee also
engaged Mercer to perform an independent review of Mr. Bienaimés compensation.
As a result of this review and the Companys strong 2016 performance as outlined
in 2016 Business Highlights above, including topping $1.0 billion in revenue for the
first time and achieving product development milestones, the Compensation
Committee determined that a 5.2% increase to Mr. Bienaimes salary (from $1,050,000 to $1,105,000) was appropriate to
ensure that Mr. Bienaimés salary remains competitive against the 2016 Peer
Group. This increase was approved in December 2016 and became effective in
February 2017.
Each NEO other than our Chief Executive
Officer is also individually evaluated based on tenure, performance and other
issues specific to the NEO. Based upon this review and the Companys strong 2016
performance, in December 2016 the Compensation Committee approved the following
increases to the base salaries of our other NEOs, each of which became effective
in February 2017:
NEO |
|
2017 Salary ($) |
|
Increase from
2016 |
Mr.
Spiegelman |
|
565,000 |
|
5.6% |
Mr.
Ajer |
|
530,000 |
|
6.0% |
Dr.
Baffi |
|
525,000 |
|
5.0% |
Dr.
Fuchs |
|
640,000 |
|
6.7% |
The Compensation Committee determined that
the base salary increases for the NEOs were appropriate given their projected
workloads and responsibilities in 2017 and competitive landscape for their
positions.
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2017 Proxy
Statement |
Table of
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Proposal No.
Four: Advisory Vote on Executive
Compensation |
Annual
Cash
Incentive
General Principles and 2016
Program
We maintain a company-wide annual cash
incentive program under which awards are generally based on corporate and
individual performance. Starting in 2015, we introduced corporate and individual
performance weightings for each level of employee in order to reflect
achievement of individuals in addition to corporate achievement against
company-wide goals. The weighting for corporate and individual performance
varies based on the employees level, with higher weighting of corporate
performance corresponding to more senior positions in the company. We believe
that this is appropriate as the more senior employees have more influence on
whether or not we achieve our strategic imperatives and long-term goals.
Consistent with this philosophy, the NEOs annual cash incentive opportunities
are primarily determined based on corporate performance, rather than individual
performance. The Chief Executive Officers annual cash incentive is based 100%
on corporate performance, and the other NEOs annual cash incentives are based
85% on corporate performance and 15% on their respective individual performance.
The Compensation Committees assessment of achievement of the corporate goals
determines the size of the annual cash incentive pool designated for corporate
performance. The funding for the individual component is also set by the
Compensation Committee, and it is intended to be above 100% so that exceptional
individual performance can be rewarded. The annual cash incentive is paid in the
first quarter of each year, based on the Companys and employees performance in
the prior year.
The annual cash incentive program,
including corporate goals and target payouts by level, is generally reviewed and
approved by the full Board in December at the time the Board considers the
budget for the following year. The goals are prepared in an interactive process
in which the Compensation Committee works with the Chief Executive Officer and
other members of management to develop corporate performance goals that are set
at levels that the Compensation Committee believes management can reasonably
achieve if we, as a whole, execute on our business plan. The corporate goals are
designed to reward specific activities that the Board and Compensation Committee
believe will enhance long-term stockholder value by providing a foundation that
will enable us to realize our long-term strategic
plan. In setting these goals, the Compensation Committee seeks to provide
appropriate annual incentives to operational goals that directly support our
longer-term goals of commercialization of new products and our long-term
profitability. We feel that this type of structure motivates executives to
challenge their teams to not only meet but exceed goals that ultimately create
value for our stockholders. However, because many of the goals, particularly the
development goals, are tied to activities intended to enhance long-term value,
the achievement of any particular goal may not have a meaningful impact on our
valuation during the cash incentive year.
As in previous years, the corporate
component of the 2016 cash incentive pool was determined by two main categories
of performance, achievement of financial goals and achievement of goals for our
development programs during the measurement year. Each year, we determine the
allocation of the target annual cash incentive between financial goals and
development goals while recognizing that current and future stockholder value is
dependent on the success of each element of our business, but that over the
one-year performance period of the annual cash incentive program, one aspect may
be more important than the other. In recognition of the importance of our
clinical programs, we allocated the annual cash incentive 40% to financial goals
and 60% to development goals, which were the same allocations used in 2015. We
continued to include a new feature that we added in 2015: the opportunity for an
extra 0-20% of weighting for goal achievement for value-creating activities,
such as strategic acquisitions and divestitures, which would only be awardable
if at least 80% of the financial and development goals were achieved.
Accordingly, the total possible weighting of performance goals for the 2016 cash
incentive equaled 120%, the same as in 2015.
With respect to the financial goals, the
sales revenue goal payout was based on an accelerated scale to emphasize the
importance of revenue growth to the Company, recognize the difficulty in
exceeding the sales revenue goal, and to be consistent with many of our peers.
The research and development (R&D) expense and sales, general and administrative (SG&A) expense goal payout was based on a traditional sliding scale. See the table
below for details on the payout scales for the financial goals.
Table of
Contents
Proposal No. Four:
Advisory Vote on Executive
Compensation |
Financial Goal |
|
Threshold Achievement Level |
|
Threshold Funding
% |
|
Target Achievement Level |
|
Target Funding % |
|
Maximum Achievement Level |
|
Maximum Funding
% |
Managed Sales Revenue(1) of $972.1 |
|
Revenue at least 80% of Target |
|
70% |
|
Revenue 100% of Target |
|
100% |
|
Revenue of 115% of Target |
|
150% |
R&D and SG&A Expenses(2) of
$982.2 |
|
Expenses no more than 10% Above Target |
|
80% |
|
Expenses 100% of Target |
|
100% |
|
Expenses of 10% Below Target |
|
150% |
(1) |
Managed Sales Revenue is based on
total net product revenue calculated in accordance with U.S. generally
accepted accounting principles (U.S. GAAP), and in 2016, excludes net
product revenue attributable to (i) Aldurazyme and (ii) Kuvan in countries
where marketing authorizations had not been transferred to BioMarin and
Merck Sorono provided sales and distribution transition services for
services rendered in 2016. |
(2) |
The R&D and SG&A Expenses
are based on total research and development expenses and selling, general
and administrative expenses, each calculated in accordance with U.S. GAAP,
and in 2016, exclude annual cash bonus and stock-based compensation
expenses. |
With respect to development goals
(e.g.,
goals related to clinical and preclinical programs), the Board determines broad
program expectations for our primary programs in the first quarter of the year
and indicative annual cash incentive weighting for each program. The broad goals
may include, by way of example, timing of initiation or completion of clinical
trials, achieving specific enrollment goals, completing filings or other
milestones with the FDA or similar regulatory agencies, achieving manufacturing
targets, completing research programs, and similar events. We have not disclosed
the specific program expectations as they are based on various strategic
elements, each of which is confidential and the Compensation Committee has
determined that disclosure of the goals could result in competitive harm to us.
At the time the development goals are set, the Compensation Committee
establishes the target levels for each of the goals to be reasonable stretch
goals, with a maximum payout only in the event of superior performance.
In January, the Compensation Committee
reviews the prior year development programs and determines an annual cash
incentive payout attributable to that aspect of our business. In making the
determination, the Compensation Committee assesses each program individually and
its total impact on the Company. Among others, the factors that the Compensation
Committee considers in evaluating the achievement of each development goal
include:
● |
the effectiveness of our efforts in
advancing the development of a program and our portfolio as a
whole; |
● |
our
effectiveness in adapting to new data generated or other changes to the
assumptions implementing the original development plan;
and |
● |
the overall value created by the
development efforts. |
Based on this assessment, the Compensation
Committee determines a percentage payout attributable to our development
efforts. The performance rating can be up to 150% of target. However, similar to
the financial goals, if the Compensation Committee determines that the
development performance does not meet a minimum achievement level, no annual
cash incentive associated with the development programs will be paid.
Notwithstanding the calculated annual cash incentive amount, the Compensation
Committee has the discretionary authority to modify payouts for any particular
goal or annual cash incentive pool in total in any manner that it deems
appropriate based on factors such as the actual impact of development efforts in
enhancing long-term stockholder value. We believe that this process provides the
greatest incentive to management and all employees to maximize the value of our
development efforts and adapt to changing circumstance dictated by data
generated, corporate development activities or other events. In the past, we
have used firm goals established at the beginning of a year, but the
Compensation Committee believes that this process does not appropriately
recognize the fluid nature of drug development and can lead to unintended
consequences. For example, if scientific findings suggest that it would be in
the best interest of the Company to terminate a program, the goal related to
that program may be removed and other program goals may be substituted.
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Table of
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Proposal No.
Four: Advisory Vote on Executive
Compensation |
The table below describes our financial,
development and value-creating activities cash incentive goals for 2016 and our
actual performance against those goals.
2016 Program Goals and
Results
|
Goal |
|
Weight (% of Target Incentive) |
|
Actual Result |
|
Pool Contribution(1) (%) |
|
Financial Goals |
|
|
|
|
|
|
|
Managed Sales Revenue of $972.1
million(2) |
|
30% |
|
$1,001.8 million |
|
32.7% |
|
R&D and SG&A Expenses of $982.2
million(3) |
|
10% |
|
$946.9 million |
|
10.9% |
|
Sub-Total (Financial Goals) |
|
40% |
|
|
|
43.6% |
|
Development Goals |
|
|
|
|
|
|
|
Kyndrisa |
|
10% |
|
Met goal |
|
|
|
Pegvaliase |
|
15% |
|
Met goal |
|
|
|
Vosoritide |
|
10% |
|
Exceeded goal |
|
|
|
Brineura |
|
10% |
|
Exceeded goal |
|
|
|
Mid-Term Product Candidates: |
|
15% |
|
Exceeded goal |
|
|
|
Reveglucosidase alfa |
|
|
(4) |
n/a |
(4) |
|
(4) |
BMN 250 |
|
|
|
Met goal |
|
|
|
BMN 270 |
|
|
|
Exceeded goal |
|
|
|
Sub-Total (Development Goals) |
|
60% |
|
|
|
76.4% |
(5) |
Value-Creating Activities |
|
20% |
|
n/a |
|
0.0% |
(6) |
Total (Financial Goals, Development Goals and
Value-Creating Activities) |
|
120% |
|
|
|
120.0% |
|
(1) |
Based on actual
result. |
(2) |
Managed Sales Revenue is based on
total net product revenue calculated in accordance with U.S. GAAP, and in
2016, excludes net product revenue attributable to (i) Aldurazyme and (ii)
Kuvan in countries where marketing authorizations had not been transferred
to BioMarin and Merck Sorono provided sales and distribution transition
services. The calculation of the actual result for the financial goals
used the same foreign currency exchange rates used for developing such
goals. |
(3) |
The R&D and SG&A Expenses
are based on total research and development expenses and selling, general
and administrative expenses, each calculated in accordance with U.S. GAAP,
and in 2016, exclude annual cash bonus and stock-based compensation
expenses for services rendered in 2016. The calculation of the actual
result for the financial goals used the same foreign currency exchange
rates used for developing such goals. |
(4) |
Following the termination of our
reveglucosidase alfa program in the first half of 2016, the percentage weighting for the
reveglucosidase alfa goal was reallocated to the other programs under the
mid-term product candidate development goal. |
(5) |
The Compensation Committee set
the pool contribution for all development goals at 76.4%, which was within
the calculated range of 67% - 78%. Recognizing that within the calculated
range, the success of the development programs as a whole is based on both
the actions of the Company as well as external factors outside of the
Companys control, the Compensation Committee determined that setting a
total pool contribution amount, rather than setting contribution amounts
for each target, was appropriate. |
(6) |
The Compensation Committee set
the pool contribution for value-creating activities at 0% as there were no
extraordinary value-creating activities over and above the financial and
development goals during 2016. |
After determining the corporate goal
achievement for 2016 was to be funded at 120% of target, the Compensation
Committee determined to fund the individual component of the pool at 115% to
reflect the outstanding performance for 2016 at the individual level as well as
the company-wide level.
The 2016 cash incentive targets for each
NEO expressed as a percentage of base salary is determined by the employees
position. The target amounts for the NEOs for 2016 cash incentives (which were
paid in March 2017) are set forth in the table below. The Compensation Committee
allocated a 115%
Table
of Contents
Proposal No. Four:
Advisory Vote on Executive
Compensation |
individual funding level for Messrs.
Spiegelman, Ajer, Baffi and Fuchs in recognition of their outstanding
performance during 2016. The specific cash incentive amount paid to each
NEO for 2016 is set forth below and is also
included in the Summary Compensation
Table in this Proxy Statement.
Name and Principal
Position |
|
2016 Cash Incentive Target (% of
base salary) |
|
2016 Corporate Goal Weighting |
|
2016 Corporate Goal Funding Level |
|
2016 Individual Performance Weighting |
|
2016 Individual Performance Funding
Level |
|
2016 Cash Incentive Amount($) |
Jean-Jacques Bienaimé |
|
110% |
|
100% |
|
120% |
|
|
|
|
|
1,386,000 |
Daniel Spiegelman |
|
60% |
|
85% |
|
120% |
|
15% |
|
115% |
|
382,793 |
Jeff Ajer |
|
60% |
|
85% |
|
120% |
|
15% |
|
115% |
|
357,750 |
Robert A. Baffi, Ph.D. |
|
60% |
|
85% |
|
120% |
|
15% |
|
115% |
|
357,750 |
Henry J. Fuchs, M.D. |
|
65% |
|
85% |
|
120% |
|
15% |
|
115% |
|
465,075 |
2017 Program
In March 2017, the Compensation Committee
evaluated the annual cash incentive targets for the cash incentive opportunity
for our NEOs for 2017, which is payable in early 2018. Based on the review, the
Compensation Committee determined to maintain the current annual cash incentive
target percentages for all NEOs. The Compensation
Committee believes that the annual cash incentive opportunities for each NEO are
appropriate based on a combination of the relative experience and tenure of each
NEO, as well as each of the NEOs position within the Company and compensation
practices within our industry.
Equity
Compensation
We grant equity awards to virtually all
newly-hired employees, mainly in the form of RSUs below the vice president level
and a mix of RSUs and options for vice presidents and above. Not all employees
receive annual equity awards. All employees are eligible to receive annual
equity awards, but the determination as to whether an employee does receive an
equity award is dependent upon performance and level. Additionally, in order to
be eligible for an annual equity award, an employee must have been employed by
the first Monday in October of the previous year. Grants for new hires, with the
exception of grants for executive officers reporting directly to the Chief
Executive Officer, are approved by the Chief Executive Officer, subject to
guidelines approved by the Compensation Committee. The guidelines are based
primarily on competitive equity grant practices in our industry and market data.
All other grants are approved by the Compensation Committee or the full Board.
The annual grant in 2016 was made in March 2016. The annual grant is made in March in order
to coincide with employees year-end performance reviews and other compensation
changes (base salary adjustment and annual cash incentive). The Board sets the
March annual grant date at least 30 days in advance.
Stock options have an exercise price equal
to 100% of the fair market value of our common stock (the closing price of our
common stock on the NASDAQ Global Select Market) on the date of the grant, so
they have value only to the extent that the market price of our common stock
increases after the date of the grant.
The allocation of equity awards between
options and RSUs varies by employee and location. Similar to our new hire equity
granting practices, in most of the countries where we operate, all employees
below vice president level that are granted equity awards receive only RSUs,
whereas vice presidents and above receive a mix of RSUs and options.
In order to better align the interests of
our executive officers that report directly to the Chief Executive Officer
(including our NEOs) with our stockholders, since 2015 the Board has allocated
an increasing portion of such executive officers annual equity grants to
performance-based awards. Specifically, in 2015 the Board implemented this new
method of allocating the annual equity grant to these executive officers among
three forms of equity awards (i.e., options, service-based RSUs and
performance-based RSUs). The allocation among the different forms of equity
awards was based on the Black-Scholes model valuation using a trailing average
closing price of our common
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2017 Proxy
Statement |
Table of
Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
stock. For 2016, the allocation was 40% to
options, 35% to service-based RSUs, and 25% to performance-based RSUs,
representing an increase in the performance-based awards from the 2015 equity
grant in which 20% were in the form of performance-based RSUs. For 2017, the
Board continued the trend of increasing the percentage of these executive
officers equity grants dependent on performance, with an allocation of 40% to
options, 30% to service-based RSUs, and 30% percent to performance-based
RSUs.
The equity compensation granted to senior
executives (including our NEOs) in 2016 continues to include a substantial
portion in the form of stock options. Stock options granted to the NEOs vest
over four years, which we believe provides an incentive to our NEOs to add value
to the Company over the long-term.
The service-based RSUs awarded in 2016 are
subject to a four-year service period, which is the same vesting schedule for
RSUs awarded as part of annual equity grants in recent years.
In furtherance of our goal to achieve
profitability in the near future, in 2016 the Board sought to incentivize senior
executives to increase sales by granting RSU awards tied to achievement of a
specified 2016 revenue target performance condition. Under the awards, the
number of performance-based RSUs earned are calculated by multiplying the target
number of performance-based RSUs by a revenue multiplier (determined based on
the Companys performance against the revenue target) which could range between
0% and 120%, with an 80% threshold required for earning any RSUs. Based on the
Companys actual 2016 performance against the revenue target, in 2017 the
Company applied a multiplier of 103% to the target number of performance-based
RSUs to determine the number of performance-based RSUs earned. The awards are
also subject to a three-year service-based vesting period following the grant
date.
The equity compensation granted to the
NEOs in March 2016 was determined based upon a number of factors. The
Compensation Committee gave particular consideration to our performance, and also considered equity grants of the 2016
Peer Group based on a Black-Scholes valuation and data from the Radford Life
Sciences survey and the Compensation Consultant. For a discussion of assumptions
used in calculating the Black-Scholes valuation see Note 17 to our financial
statements for the year ended December 31, 2016, included in the Companys
Annual Report on Form 10-K for the year ended December 31, 2016, as filed with
the SEC on February 27, 2017. In determining the allocation of options and RSUs
(service-based and performance-based), the Compensation Committee considered a
variety of factors, including the effect on the total number of shares to be
issued under our equity plan, peer group practices and the comparative value of
options and RSUs. Overall, the Compensation Committee sought to set equity
compensation to be competitive in the market to retain the talent that the
Company needs. The considerations in differentiating grants among the NEOs were
principally level of responsibility and experience. The Committee also
considered:
● |
historic grants; |
● |
peer group
practices; |
● |
retention value; |
● |
level of
responsibility; |
● |
experience of
individual; |
● |
individual contribution;
and |
● |
expected future contribution. |
We have reviewed our historical option
grant practices to consider if the options were properly dated. Based on such
review, we believe that all options were issued on the date approved by the
Board or a properly authorized committee and that the exercise price for each
option issued since the date of our initial public offering was the closing
price of our common stock on the date of issuance, unless the option grant
specifically approved a different price in accordance with the terms of the
applicable option plan pursuant to which such option was granted.
Table of Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
Other
Benefits and Perquisites
In addition to base salary, annual cash
incentive and equity grants, we provide a comprehensive benefits package,
including health insurance, dental insurance, life insurance, disability
insurance, a 401(k) matching program, and an employee stock purchase plan, which
is intended to meet the requirements of Section 423 of the Code. These benefits
are generally available to all employees on an equal basis, including our NEOs.
The 401(k) matching program matches 100% of an employees contribution up to the
lesser of 6% of his or her annual salary or $14,000 per year, with immediate
vesting of all 401(k) matches.
We provide our NEOs, along with other
officers, a limited number of perquisites. An item is not a perquisite if it is
integrally and directly related to the performance of the executives duties. An
item is a perquisite if it confers a direct or indirect benefit that has a
personal aspect, without regard to whether it may be provided for some business
reason or for the convenience of the Company, unless it is generally available
on a non-discriminatory basis to all employees.
We provide the following perquisites to
our NEOs:
● |
Sporting and Event Tickets. We purchase season and other tickets to sporting,
cultural and other events for use in connection with our business. When
these tickets are provided to executives (including our NEOs) for personal
use, the value of the tickets is included in their compensation.
Executives generally have first priority on such tickets. These tickets
are not used for the entertainment of healthcare
professionals. |
● |
Reimbursement for Financial and Tax Planning and
Preparation Services. We reimburse our
executive officers, including our NEOs, for personal financial planning
and tax preparation. The benefit is limited to $5,000 annually for our
Chief Executive Officer, $3,500 annually for Senior Vice Presidents and
Executive Vice Presidents and $2,500 annually for all other Vice
Presidents, and is taxable to the executive. The perquisite is intended to
encourage and assist our executives to engage knowledgeable experts to
assist with financial and tax planning. |
● |
Life Insurance. In accordance with the terms of our employment agreement with Mr.
Bienaimé, as amended and restated on December 13, 2016, we provide Mr.
Bienaimé with a fully paid, whole life insurance policy with a stated
death benefit of $500,000. In addition, we provide Mr.
Bienaimé with term life insurance coverage generally provided to all
employees with a death benefit up to two times an employees salary (Mr.
Bienaimés death benefit is subject to a $1,000,000 cap; all other
employees are subject to a $600,000 cap). |
● |
Health Assessments. We offer our executive officers, including our NEOs, annual
comprehensive health assessments at a local medical facility. The
perquisite is intended to encourage and assist our executives to engage
knowledgeable experts to assist with their health and
well-being. |
We also offer our executive officers
severance benefits. See the Post-Employment
Obligations section of this Proxy Statement
below.
Nonqualified Deferred Compensation
Our NEOs, other members of management, and
other highly-compensated employees are eligible to enroll in our Nonqualified
Deferred Compensation Plan under which they may elect to defer up to 100% of RSU
awards and up to 50% of salary and annual cash incentive awards, in each case
subject to limitations to allow us to make necessary withholding payments, and thereby defer taxation of these deferred amounts
until actual payment of the deferral amounts in future years. See the table
within the Nonqualified Deferred Compensation
Plan section of this Proxy Statement for
detailed information regarding the account balances for each NEO.
Post-Employment Obligations
We have employment agreements with most of
our executive officers (including all of our NEOs) that provide severance
benefits if an executive terminates employment with us for a good reason
specified in the employment agreement (e.g., a change in work location of
more than a specified distance from the previous location) or if the executive
is terminated without cause or in connection with
a corporate transaction or change in control. See the Potential Payments Upon Termination or Change in
Control section of this Proxy Statement for
a more detailed discussion of the terms of these arrangements and the amounts
payable to our NEOs under them.
58 |
|
|
2017 Proxy
Statement |
Table
of Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
We believe that these arrangements enhance
retention in the face of the disruptive impact of a highly competitive industry
and any possible change in control of the Company. In addition, the program is
intended to align executive and stockholder interests by enabling executives to
consider corporate transactions that are in the best interests of our
stockholders and other constituents without undue concern over whether the
transactions may jeopardize the executives own employment.
No post-employment benefits are payable to
our NEOs under their employment agreements if their termination is for cause,
for a voluntary resignation (other than as set forth above), retirement or due
to death (except for a fully-paid whole life insurance policy with a stated
death benefit of $500,000 maintained for Mr. Bienaimé).
In order to remain competitive with peer
company practices and serve as a valuable benefit for employee recruitment and
retention, in June 2015 the Board adopted a policy for the acceleration of
equity awards upon the death of an employee (including our NEOs). Upon the death
of an employee, all the employees unvested equity awards with time-based
vesting vest in full and all unvested equity awards with performance-based
vesting vest in full as if the target values had been achieved, and such awards remain exercisable for one year after death.
To reward long standing service to the Company, in December 2016, we clarified
the scope of the Retirement Benefit for Directors and Senior Officers policy by
amending it so that directors and officers with a title of Vice President or
above that have a combined age and total term of employment (or service as
director) of at least 65 years at the time of terminating service to the
company for
any reason other than cause are permitted to exercise all their options that
were both vested and outstanding as of the date of termination of service
through the term of their options, as if their service were
continuing. Furthermore, in December 2016, the Compensation Committee approved a new
retirement benefit applicable to certain of the Companys senior executives,
including the NEOs, but specifically excluding the Chief Executive Officer. The
retirement benefit provides that, upon a senior executives attainment of age 64
and completion of at least five years of service with the Company, all of the
executives unvested RSUs (including future RSU award grants) and non-qualified
stock option award grants made after adoption of the retirement benefit, whether
time-based or performance-based, will continue to vest according to their terms,
whether or not the executives service is continuing; provided, however, that
the executives service is not terminated for cause.
Accounting and Tax Considerations
Nonqualified
Deferred Compensation On October 22,
2004, the American Jobs Creation Act of 2004 was signed into law, adding Section
409A that changed the tax rules applicable to nonqualified deferred compensation
arrangements. A more detailed discussion of our nonqualified deferred
compensation arrangements is provided below under the Nonqualified Deferred Compensation Plan section of this Proxy Statement.
Accounting for
Stock-Based Compensation Beginning on
January 1, 2006, we adopted the provisions of FASB ASC Topic 718, Compensation
Stock Compensation, which require us to estimate and record an expense for each
equity award over the vesting period of the award and estimate prospective
forfeitures. In 2016, we elected to early adopt Accounting Standards Update No.
2016-09, Improvement to Employee Share-based Payment Accounting, and made a
policy election to recognize forfeitures as they occur. Generally, the
Compensation Committee does not make compensation decisions based on the tax or
accounting treatment of any particular form of compensation; however, it has
considered and approved and may in the future consider the grant of
alternative equity incentives to our NEOs in lieu
of stock option grants in light of the accounting impact of FASB ASC Topic 718
with respect to stock option grants and other considerations.
Section 162(m) Section
162(m) of the Code (Section 162(m)) limits our deduction for federal income tax
purposes to not more than $1,000,000 of compensation paid to certain executive
officers in a calendar year. Compensation above $1,000,000 may be deducted if it
is performance-based compensation. The Board and the Compensation Committee
regularly consider the impact of Section 162(m) regarding the deductibility of
compensation to certain executive officers in excess of $1,000,000 but have not
yet established a policy for determining which forms of incentive compensation
awarded to our executive officers will be designed to qualify as
performance-based compensation. To maintain flexibility in compensating our
executive officers in a manner designed to promote our goals, the Compensation
Committee has not adopted a policy that requires all executive compensation to
be deductible. The Compensation Committee and the Board will continue to
evaluate the effects of the compensation limits of
Table of
Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
Section 162(m) on any compensation it
proposes to grant, and may, in the future, consider qualifying our equity
compensation plans and/or bonus plans so that compensation payable under those
arrangements is fully deductible under Section 162(m). In furtherance of this,
the amended and restated 2006 Plan, approved by our stockholders at our Annual
Meeting of stockholders held on June 9, 2015, is intended to allow the
Compensation Committee discretion to grant stock options
to employees that will be intended to be eligible for exclusion from the Section
162(m) limit. Likewise, the 2017 Plan that is the subject of Proposal No. Five
Approval of the 2017 Equity Incentive Plan gives the Compensation Committee
discretion to grant equity awards to employees that may be excluded from the
Section 162(m) limit.
Director and Officer Stock Ownership Guidelines
In order to preserve the linkage between
the interests of executives and those of stockholders, the Compensation
Committee and the Board established stock ownership guidelines for our executives. See the Director and Officer Stock Ownership Guidelines section of this Proxy Statement for a more detailed discussion
of our stock ownership guidelines.
Executive Compensation Tables
Summary Compensation Table
The following table discloses compensation
awarded to, earned by or paid to the following persons during 2014, 2015 and
2016: (i) Jean-Jacques Bienaimé, our Chief Executive Officer; (ii) Daniel
Spiegelman, our Chief Financial Officer; and (iii) Jeff Ajer, Robert A. Baffi,
Ph.D. and Henry J. Fuchs, M.D., the three most
highly-compensated officers other than the Chief Executive Officer and Chief
Financial Officer who were serving as officers at the end of fiscal year 2016
and whose salary and bonus exceeded $100,000. These individuals are referred to
throughout this Proxy Statement as the Named Executive Officers or
NEOs.
Name and
Principal Position |
|
Year |
|
Salary |
(1) |
Stock Awards |
(2) |
Option Awards |
(3) |
Non-Equity Incentive
Plan Compensation |
(4) |
All
Other Compensation |
(5) |
Total |
Jean-Jacques
Bienaimé Chief Executive Officer |
|
2016 |
|
$ |
1,037,500 |
|
$ |
8,683,394 |
|
$ |
5,782,125 |
|
$ |
1,386,000 |
|
$ |
48,582 |
|
$ |
16,937,601 |
|
2015 |
|
|
973,461 |
|
|
6,436,584 |
|
|
4,768,445 |
|
|
1,408,550 |
|
|
49,510 |
|
|
13,636,550 |
|
2014 |
|
|
916,030 |
|
|
3,211,790 |
|
|
5,867,520 |
|
|
864,875 |
|
|
38,177 |
|
|
10,898,392 |
Daniel
Spiegelman Executive Vice President, Chief Financial Officer |
|
2016 |
|
|
530,192 |
|
|
2,380,258 |
|
|
1,584,825 |
|
|
382,793 |
|
|
21,135 |
|
|
4,899,203 |
|
2015 |
|
|
505,192 |
|
|
1,712,088 |
|
|
1,259,291 |
|
|
362,546 |
|
|
22,941 |
|
|
3,862,058 |
|
2014 |
|
|
480,576 |
|
|
870,780 |
|
|
1,588,224 |
|
|
226,738 |
|
|
17,413 |
|
|
3,183,731 |
Jeff
Ajer Executive Vice President, Chief Commercial Officer |
|
2016 |
|
|
490,385 |
|
|
2,316,017 |
|
|
1,541,900 |
|
|
357,750 |
|
|
16,361 |
|
|
4,722,413 |
|
2015 |
|
|
445,193 |
|
|
1,712,088 |
|
|
1,259,291 |
|
|
323,606 |
|
|
16,500 |
|
|
3,756,678 |
|
2014 |
|
|
417,674 |
|
|
719,340 |
|
|
1,311,744 |
|
|
212,500 |
|
|
16,043 |
|
|
2,677,301 |
Robert A. Baffi,
Ph.D. Executive Vice President, Technical Operations |
|
2016 |
|
|
491,347 |
|
|
2,316,017 |
|
|
1,541,900 |
|
|
357,750 |
|
|
24,265 |
|
|
4,731,279 |
|
2015 |
|
|
449,231 |
|
|
1,712,088 |
|
|
1,259,291 |
|
|
323,448 |
|
|
19,819 |
|
|
3,763,877 |
|
2014 |
|
|
417,875 |
|
|
795,060 |
|
|
1,449,984 |
|
|
198,688 |
|
|
18,338 |
|
|
2,879,945 |
Henry J. Fuchs,
M.D. President, Worldwide R&D |
|
2016 |
|
|
594,231 |
|
|
2,830,780 |
|
|
1,884,450 |
|
|
465,075 |
|
|
18,491 |
|
|
5,793,027 |
|
2015 |
|
|
563,269 |
|
|
2,178,036 |
|
|
1,607,045 |
|
|
405,199 |
|
|
21,738 |
|
|
4,775,287 |
|
2014 |
|
|
528,235 |
|
|
984,360 |
|
|
1,794,048 |
|
|
250,113 |
|
|
18,338 |
|
|
3,575,094 |
(1) |
See the Base Salary section of this
Proxy Statement for further information regarding amounts in this
column. |
60 |
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|
2017 Proxy
Statement |
Table of
Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
(2) |
The amounts in this column
reflect the aggregate grant date fair value computed in accordance with
FASB ASC Topic 718. For the performance-based RSUs awarded in 2016, the
grant date fair market value was computed in accordance with FASB ASC
Topic 718 based upon the assumption that the RSUs to be earned if the
specified 2016 revenue target performance condition is met will vest. For
assumptions used in determining grant date fair market value, see Note 17
to the consolidated financial statements contained in the Companys Annual
Report on Form 10-K for the year ended December 31, 2016, as filed with
the SEC on February 27, 2017. See the Equity Compensation section
of this Proxy Statement for further information regarding amounts in this
column. The table below shows the target and maximum payouts that were
possible for the performance-based RSUs awarded in 2016 based on the value
at the date of grant and the payout ranges. |
|
NEO |
|
Target
Payout |
|
Maximum
Payout |
|
Jean-Jacques Bienaimé |
|
$ |
3,618,359 |
|
$ |
4,342,031 |
|
Daniel Spiegelman |
|
|
991,983 |
|
|
1,190,379 |
|
Jeff Ajer |
|
|
965,285 |
|
|
1,158,342 |
|
Robert A. Baffi, Ph.D. |
|
|
965,285 |
|
|
1,158,342 |
|
Henry J. Fuchs, M.D. |
|
|
1,179,700 |
|
|
1,415,640 |
|
In 2017, based on the Companys
actual 2016 performance against the revenue target, the Company applied a
multiplier of 103% to the target number of performance-based RSUs awarded
during 2016 to determine the number of performance-based RSUs actually
earned. See footnote (5) and the related amounts in the Outstanding Equity Awards at Fiscal
Year-End table below for the number of
performance-based RSUs awarded during 2016 that were actually earned and
the value of such earned performance-based RSUs using the closing price of
our common stock on December 31, 2016. |
(3) |
The amounts in this column
reflect the aggregate grant date fair values computed in accordance with
FASB ASC Topic 718. For assumptions used in determining these values, see
Note 17 to the consolidated financial statements contained in the
Companys Annual Report on Form 10-K for the year ended December 31, 2016,
as filed with the SEC on February 27, 2017. See the Equity Compensation
section of this Proxy Statement for further information regarding amounts
in this column. |
(4) |
Amounts noted for 2016 represent
amounts earned by the NEOs during 2016, but paid in 2017. Amounts noted
for 2015 represent amounts earned by the NEOs during 2015, but paid in
2016. Amounts noted for 2014 represent amounts earned by the NEOs during
2014, but paid in 2015. See the Annual
Cash Incentive section of this Proxy
Statement for further information regarding amounts in this
column. |
(5) |
These amounts represent the
amounts paid for personal tax preparation/financial planning consultation,
vested 401(k) matching, tickets to sporting, cultural and other events and
imputed income associated with life insurance premium payments for each
NEO. See the Other Benefits and
Perquisites section of this Proxy
Statement for further information regarding amounts in this
column. |
Table of
Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
Grants of Plan-Based Awards
The following table sets forth certain
information for each plan-based award during fiscal year 2016 to each of the
NEOs.
|
|
|
Estimated Future
Payouts Under Non-Equity
Incentive Plan
Awards(1) |
Estimated Future Payouts Under Equity
Incentive Plan Awards(2) |
All Other Stock Awards: Number of Shares
of Stock or Units(#) |
(3) |
All
Other Option Awards: Number
of Securities Underlying Options(#) |
(4) |
Exercise or Base Price of
Option Awards ($/Share) |
(5) |
Grant Date Fair
Value of Stock and Option Awards ($) |
(6) |
Name |
|
Grant Date |
Threshold ($) |
|
Target ($) |
|
Maximum ($) |
|
Threshold (#) |
|
Target (#) |
|
Maximum (#) |
Jean-Jacques Bienaimé |
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
|
|
136,050 |
|
83.43 |
|
5,782,125 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
60,710 |
|
|
|
|
|
5,065,035 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
34,696 |
|
43,370 |
|
52,044 |
|
|
|
|
|
|
3,618,359 |
|
|
n/a |
(7) |
|
1,155,000 |
|
1,732,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel Spiegelman |
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
|
|
37,290 |
|
83.43 |
|
1,584,825 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
16,640 |
|
|
|
|
|
1,388,275 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
9,512 |
|
11,890 |
|
14,268 |
|
|
|
|
|
|
991,983 |
|
|
n/a |
(7) |
|
321,000 |
|
481,500 |
(8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeff Ajer |
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
|
|
36,280 |
|
83.43 |
|
1,541,900 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
16,190 |
|
|
|
|
|
1,350,732 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
9,256 |
|
11,570 |
|
13,884 |
|
|
|
|
|
|
965,285 |
|
|
n/a |
(7) |
|
300,000 |
|
450,000 |
(8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert A. Baffi,
Ph.D. |
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
|
|
36,280 |
|
83.43 |
|
1,541,900 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
16,190 |
|
|
|
|
|
1,350,732 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
9,256 |
|
11,570 |
|
13,884 |
|
|
|
|
|
|
965,285 |
|
|
n/a |
(7) |
|
300,000 |
|
450,000 |
(8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Henry J. Fuchs,
M.D. |
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
|
|
44,340 |
|
83.43 |
|
1,884,450 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
|
|
|
|
|
19,790 |
|
|
|
|
|
1,651,080 |
|
|
3/15/2016 |
(7) |
|
|
|
|
|
11,312 |
|
14,140 |
|
16,968 |
|
|
|
|
|
|
1,179,700 |
|
|
n/a |
(7) |
|
390,000 |
|
585,000 |
(8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Annual Cash
Incentive: Amounts represent potential
payments under our 2016 cash incentive program, which were paid in 2017.
For further discussion of our annual cash incentive program, see the
Annual Cash Incentive section of this Proxy Statement and see the
Summary Compensation
Table in this Proxy Statement for
amounts actually paid under the 2016 cash incentive program. |
(2) |
Performance-Based
RSUs: Amounts represent the potential
numbers of performance-based RSUs based upon achievement of the 2016
revenue target performance condition. Under the awards, the number of
performance-based RSUs earned are calculated by multiplying the target
number of performance-based RSUs by a revenue multiplier (determined based
on the Companys performance against the revenue target) which could range
between 80% and 120%. In 2017, based on the Companys actual 2016
performance against the revenue target, the Company applied a multiplier
of 103% to the target number of performance-based RSUs awarded during 2016
to determine the number of performance-based RSUs actually earned. See
footnote (5) and the related amounts in the Outstanding Equity Awards at Fiscal Year-End table below for the number of performance-based RSUs
awarded during 2016 that were actually earned and the value of such earned
performance-based RSUs using the closing price of our common stock on
December 31, 2016. The awards are also subject to a three-year
service-based vesting period following the grant date. For further
discussion of the performance-based RSU awards granted in 2016, see the
Equity Compensation section of this Proxy Statement. |
(3) |
Service-Based RSUs:
Service-based RSUs vest in four equal tranches on
the anniversary of the date of the grants. |
(4) |
Options: Options vest 12/48ths on the twelve month
anniversary of the date of grant, and 1/48th per month
thereafter for the next three years, and remain exercisable for ten years
after the date of grant. |
(5) |
Options were granted at an
exercise price equal to the closing price of our common stock on the
NASDAQ Global Select Market on the date of the
grant. |
62 |
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|
2017 Proxy
Statement |
Table of
Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
(6) |
The amounts presented above
represent the aggregate grant date fair value of the RSU award or option
grant computed in accordance with FASB ASC Topic 718. The grant date fair
market value for options awards was $42.50 per share and the grant date
fair market value of the RSU awards was the closing price of our common
stock on the NASDAQ Global Select Market on the date of the respective
grant. For assumptions used in determining these grant date fair market
value, see Note 17 to the consolidated financial statements contained in
the Companys Annual Report on Form 10-K for the year ended December 31,
2016, as filed with the SEC on February 27, 2017. |
(7) |
The potential payouts under our
2016 cash incentive program are performance-driven and completely at risk;
therefore, the minimum possible payout is zero. |
(8) |
The potential payout under our
2016 cash incentive program for this NEO is based 85% on achievement of
corporate goals and 15% on individual performance. The maximum achievement
for corporate goals under the 2016 cash incentive program is 150%; however
there is no maximum percentage that can be awarded for individual
performance. The maximum potential payout for this NEO shown here is
calculated using the maximum achievement for corporate goals percentage
(150%), and for purposes of this disclosure, a reasonable maximum
percentage for individual performance of 150%. The individual performance
percentage actually awarded to Messrs. Spiegelman, Ajer, Baffi and Fuchs
under our 2016 cash incentive program was 115%. For further discussion of
our annual cash incentive program, see the Annual Cash Incentive section
of this Proxy Statement and see the Summary Compensation Table in
this Proxy Statement for amounts actually paid under the 2016 cash
incentive program. |
The number of options and RSUs granted to
the Chief Executive Officer is determined based on recommendations by the
Compensation Committee and is approved by the Board and the number of options
and RSUs granted to the other NEOs is determined by the Compensation Committee.
See the Equity Compensation section of this Proxy Statement for additional information regarding
grant practices.
Table of
Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
Outstanding Equity Awards at Fiscal
Year-End
The following table sets forth the
outstanding unexercised options granted pursuant to equity awards as of the end
of fiscal year 2016 for each of the NEOs.
|
|
Grant Date |
Option Awards(1) |
|
Stock
Awards |
Name |
|
|
Number
of Securities Underlying Unexercised Options Exercisable (#) |
|
Number
of Securities Underlying Unexercised Options Unexercisable (#) |
|
Option Exercise Price ($) |
(2) |
Option Expiration Date |
|
Number of Shares or Units
of Stock That Have Not Vested (#) |
|
Market Value of Shares
or Units of Stock That Have Not Vested ($) |
(4) |
Jean-Jacques Bienaimé |
|
6/7/2007 |
|
109,423 |
|
|
|
17.33 |
|
6/6/2017 |
|
|
|
|
|
|
5/22/2008 |
|
212,500 |
|
|
|
38.59 |
|
5/21/2018 |
|
|
|
|
|
|
12/17/2008 |
|
11,000 |
|
|
|
17.86 |
|
12/16/2018 |
|
|
|
|
|
|
5/12/2009 |
|
117,000 |
|
|
|
14.39 |
|
5/11/2019 |
|
|
|
|
|
|
5/12/2010 |
|
140,000 |
|
|
|
21.51 |
|
5/11/2020 |
|
|
|
|
|
|
5/12/2011 |
|
140,513 |
|
|
|
26.49 |
|
5/11/2021 |
|
|
|
|
|
|
5/8/2012 |
|
140,000 |
|
|
|
37.46 |
|
5/7/2022 |
|
|
|
|
|
|
5/15/2013 |
|
197,531 |
|
22,969 |
|
67.81 |
|
5/14/2023 |
|
9,450 |
(3) |
782,838 |
|
|
6/4/2014 |
|
119,375 |
|
71,625 |
|
63.10 |
|
6/3/2024 |
|
25,450 |
(3) |
2,108,278 |
|
|
3/3/2015 |
|
39,593 |
|
50,907 |
|
108.36 |
|
3/2/2025 |
|
29,700 |
(3) |
2,460,348 |
|
|
3/3/2015 |
|
|
|
|
|
|
|
|
|
14,652 |
(5) |
1,213,772 |
|
|
3/15/2016 |
|
|
|
136,050 |
|
83.43 |
|
3/14/2026 |
|
60,710 |
(3) |
5,029,216 |
|
|
3/15/2016 |
|
|
|
|
|
|
|
|
|
44,671 |
(5) |
3,700,554 |
|
Daniel Spiegelman |
|
5/29/2012 |
|
2,604 |
|
|
|
39.06 |
|
5/28/2022 |
|
|
|
|
|
|
5/15/2013 |
|
34,901 |
|
8,021 |
|
67.81 |
|
5/14/2023 |
|
3,300 |
(3) |
273,372 |
|
|
6/4/2014 |
|
32,312 |
|
19,388 |
|
63.10 |
|
6/3/2024 |
|
6,900 |
(3) |
571,596 |
|
|
3/3/2015 |
|
10,456 |
|
13,444 |
|
108.36 |
|
3/2/2025 |
|
7,875 |
(3) |
652,365 |
|
|
3/3/2015 |
|
|
|
|
|
|
|
|
|
3,922 |
(5) |
324,898 |
|
|
3/15/2016 |
|
|
|
37,290 |
|
83.43 |
|
3/14/2026 |
|
16,640 |
(3) |
1,378,458 |
|
|
3/15/2016 |
|
|
|
|
|
|
|
|
|
12,247 |
(5) |
1,014,517 |
|
Jeff Ajer |
|
5/22/2008 |
|
3,498 |
|
|
|
38.59 |
|
5/21/2018 |
|
|
|
|
|
|
5/31/2011 |
|
988 |
|
|
|
28.23 |
|
5/30/2021 |
|
|
|
|
|
|
5/8/2012 |
|
3,521 |
|
|
|
37.46 |
|
5/7/2022 |
|
|
|
|
|
|
5/15/2013 |
|
43,895 |
|
5,105 |
|
67.81 |
|
5/14/2023 |
|
2,100 |
(3) |
173,964 |
|
|
6/4/2014 |
|
23,687 |
|
16,013 |
|
63.10 |
|
6/3/2024 |
|
5,700 |
(3) |
472,188 |
|
|
3/3/2015 |
|
10,456 |
|
13,444 |
|
108.36 |
|
3/2/2025 |
|
7,875 |
(3) |
652,365 |
|
|
3/3/2015 |
|
|
|
|
|
|
|
|
|
3,922 |
(5) |
324,898 |
|
|
3/15/2016 |
|
|
|
36,280 |
|
83.43 |
|
3/14/2026 |
|
16,190 |
(3) |
1,341,180 |
|
|
3/15/2016 |
|
|
|
|
|
|
|
|
|
11,917 |
(5) |
987,213 |
|
64 |
|
|
2017 Proxy
Statement |
Table of
Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
|
|
Grant Date |
Option Awards(1) |
|
Stock
Awards |
Name |
|
|
Number
of Securities Underlying Unexercised Options Exercisable (#) |
|
Number
of Securities Underlying Unexercised Options Unexercisable (#) |
|
Option Exercise Price ($) |
(2) |
Option Expiration Date |
|
Number of Shares or Units
of Stock That Have Not Vested (#) |
|
Market Value of Shares
or Units of Stock That Have Not Vested ($) |
(4) |
Robert A. Baffi, Ph.D. |
|
5/12/2009 |
|
6,949 |
|
|
|
14.39 |
|
5/11/2019 |
|
|
|
|
|
|
|
5/12/2010 |
|
40,000 |
|
|
|
21.51 |
|
5/11/2020 |
|
|
|
|
|
|
|
5/12/2011 |
|
80,000 |
|
|
|
26.49 |
|
5/11/2021 |
|
|
|
|
|
|
|
5/8/2012 |
|
40,000 |
|
|
|
37.46 |
|
5/7/2022 |
|
|
|
|
|
|
|
5/15/2013 |
|
62,708 |
|
7,292 |
|
67.81 |
|
5/14/2023 |
|
3,000 |
(3) |
248,520 |
|
|
|
6/4/2014 |
|
29,500 |
|
17,700 |
|
63.10 |
|
6/3/2024 |
|
6,300 |
(3) |
521,892 |
|
|
|
3/3/2015 |
|
10,456 |
|
13,444 |
|
108.36 |
|
3/2/2025 |
|
7,875 |
(3) |
652,365 |
|
|
|
3/3/2015 |
|
|
|
|
|
|
|
|
|
3,922 |
(5) |
324,898 |
|
|
|
3/15/2016 |
|
|
|
36,280 |
|
83.43 |
|
3/14/2026 |
|
16,190 |
(3) |
1,341,180 |
|
|
|
3/15/2016 |
|
|
|
|
|
|
|
|
|
11,917 |
(5) |
987,213 |
|
Henry J. Fuchs, M.D. |
|
5/12/2010 |
|
2,000 |
|
|
|
21.51 |
|
5/11/2020 |
|
|
|
|
|
|
|
5/12/2011 |
|
39,000 |
|
|
|
26.49 |
|
5/11/2021 |
|
|
|
|
|
|
|
5/8/2012 |
|
60,000 |
|
|
|
37.46 |
|
5/7/2022 |
|
|
|
|
|
|
|
5/15/2013 |
|
81,521 |
|
9,479 |
|
67.81 |
|
5/14/2023 |
|
3,900 |
(3) |
323,076 |
|
|
|
6/4/2014 |
|
36,500 |
|
21,900 |
|
63.10 |
|
6/3/2024 |
|
7,800 |
(3) |
646,152 |
|
|
|
3/3/2015 |
|
13,343 |
|
17,157 |
|
108.36 |
|
3/2/2025 |
|
10,050 |
(3) |
832,545 |
|
|
|
3/3/2015 |
|
|
|
|
|
|
|
|
|
4,958 |
(5) |
410,721 |
|
|
|
3/15/2016 |
|
|
|
44,340 |
|
83.43 |
|
3/14/2026 |
|
19,790 |
(3) |
1,639,404 |
|
|
|
3/15/2016 |
|
|
|
|
|
|
|
|
|
14,564 |
(5) |
1,206,498 |
|
(1) |
All options vest over a four-year
period. Options granted before June 15, 2015 vest at the rate of 6/48ths
on the sixth-month anniversary of the grant date and 1/48th each month
during the optionees employment. Options granted on or after June 15,
2015 vest at the rate of 12/48ths on the twelve-month anniversary of the
grant date and 1/48th each month thereafter during the optionees
employment. Subject to certain exceptions, the maximum term of options
granted under the 2006 Plan is 10 years. |
(2) |
Represents the closing market
price of our common stock as reported on the NASDAQ Global Select Market
on the grant date. |
(3) |
Service-based RSUs. All
service-based RSUs vest over a four-year period, vesting at the rate of
one fourth on the anniversary of the grant date and one fourth each
anniversary of the grant date thereafter during the recipients continued
service. |
(4) |
The value of RSUs shown in the
table was calculated using the closing price of our common stock on
December 31, 2016 ($82.84). |
(5) |
The numbers of performance-based
RSUs represented in this table are the actual numbers of RSUs earned by
the NEOs based on achievement of performance criteria as of the respective
measurement dates for each performance award. In 2016, based on the
Companys actual 2015 performance against the revenue target as of the
measurement date (December 31, 2015), the Company applied a multiplier of
111% to the target number of performance-based RSUs granted in 2015 to
determine the number of performance-based RSUs actually earned. In 2017,
based on the Companys actual 2016 performance against the revenue target
as of the measurement date (December 31, 2016), the Company applied a
multiplier of 103% to the target number of performance-based RSUs granted
in 2016 to determine the number of performance-based RSUs actually earned.
The performance-based RSUs vest over a three-year period, vesting at the
rate of one third on the anniversary of the grant date and one third each
anniversary of the grant date thereafter during the recipients continued
service with the company. All service-based RSUs vest over a four-year
period, vesting at the rate of one fourth on the anniversary of the grant
date and one fourth each anniversary of the grant date thereafter during
the recipients employment. |
Table of Contents
Proposal No. Four:
Advisory Vote on Executive Compensation |
Options
Exercised and Stock Vested
The following table sets forth the number
and value of options exercised and share awards that vested in fiscal year 2016
for each of the NEOs.
|
|
Option Awards |
|
Stock Awards |
Name |
|
Number of Shares Acquired
on Exercise(#) |
|
Value Realized on
Exercise ($) |
(1) |
Number of Shares Acquired
on Vesting(#) |
|
Value Realized on
Vesting ($) |
(2) |
Jean-Jacques Bienaimé |
|
1,023,064 |
|
65,740,632 |
|
425,401 |
|
35,056,633 |
|
Daniel Spiegelman |
|
16,896 |
|
860,682 |
|
112,586 |
|
9,343,114 |
|
Jeff Ajer |
|
|
|
|
|
48,036 |
|
3,991,563 |
|
Robert A. Baffi, Ph.D. |
|
|
|
|
|
107,736 |
|
8,879,508 |
|
Henry J. Fuchs, M.D. |
|
45,000 |
|
2,861,964 |
|
131,229 |
|
10,817,165 |
|
(1) |
The value realized upon exercise
of stock options reflects the price at which shares acquired upon exercise
of the stock options were sold or valued for income tax purposes, net of
the exercise price for acquiring the shares. |
(2) |
The value realized on vesting of
RSUs was calculated as of the product of the closing price of a share of
our common stock on the vesting date, multiplied by the number of shares
vested. |
Pension
Benefits
There is no retirement pension plan
provided for the NEOs.
Nonqualified Deferred Compensation Plan
Our Nonqualified Deferred Compensation
Plan allows members of management, other highly-compensated employees and
members of the Board to make voluntary irrevocable deferrals of the compensation
that would otherwise be paid by us to specified future dates, employment
termination, hardship events, disability, retirement or death. Directors may
elect to defer all or a portion of their fees and RSU awards otherwise payable
to them. Non-Director participants are permitted to defer up to 100% of RSU
awards and up to 50% of salary and annual cash incentive awards, in each case
subject to limitations to allow us to make necessary withholding payments. Plan
participants deferred compensation is 100% vested under the Nonqualified
Deferred Compensation Plan. We may make additional direct contributions to the
Nonqualified Deferred Compensation Plan for the benefit of the participants, but
any such contributions must be approved by the Board. Our contributions, if any,
will become 100% vested after three years of service with us (or such other time as we designate at the time of the
contribution), or upon a change in control of the Company, or the individuals
death or disability. Participants have an unsecured contractual commitment by us
to pay the amounts that become due under the Nonqualified Deferred Compensation
Plan. Deferred compensation may be held in trust and is deemed invested based on
participant direction as allowed by the Nonqualified Deferred Compensation Plan.
Participants accounts are credited or debited with the increase or decrease in
the realizable net asset value of the designated deemed investments in
accordance with the ratio the portion of the account of each participant that is
deemed to be invested within that investment option bears to the aggregate of
all amounts deemed to be invested within that investment option. Any funds held
in a trust will be our sole property, subject to any claims of general creditors
in the event of bankruptcy, and plan participants will have no vested interest
with respect to such trust fund.
66 |
|
|
2017 Proxy
Statement |
Table of Contents
Proposal No. Four:
Advisory Vote on Executive Compensation |
The following table shows for the fiscal
year ended December 31, 2016, certain information regarding non-qualified
deferred compensation benefits for the NEOs who participate in the Nonqualified
Deferred Compensation Plan.
Name |
|
Executive Contributions
in 2016 ($) |
|
|
Aggregate Earnings (Loss) in
2016 ($) |
|
|
Aggregate Withdrawals/ Distributions
($) |
|
|
Aggregate Balance at December
31, 2016 ($) |
Jean-Jacques Bienaimé |
|
282,800 |
(1) |
|
(441,660 |
) |
|
367,220 |
(2) |
|
1,988,160 |
Daniel Spiegelman |
|
11,726 |
(3) |
|
20,569 |
|
|
|
|
|
251,875 |
Robert A. Baffi, Ph.D. |
|
239,475 |
(4) |
|
551,473 |
|
|
499,161 |
(5) |
|
2,192,834 |
(1) |
Amount represents the value of
3,500 shares of common stock contributed by Mr. Bienaimé upon the vesting
of RSU grants on May 6, 2016 (based on per share market price of $80.80 on
the contribution date). |
(2) |
Reflects the value of 3,500
shares of common stock distributed to Mr. Bienaimé on January 4, 2016
(based on per share market price of $104.92 on the distribution
date). |
(3) |
Amount represents recontributed
dividends and interests earned during 2016. |
(4) |
Amount includes cash compensation
contributed by Dr. Baffi and recontributed dividend and interest earned
during 2016. |
(5) |
Reflects the value of 2,675
shares of common stock distributed to Mr. Baffi on January 4, 2016 (based
on per share market price of $104.92 on the distribution date) plus the
value of 2,500 shares of common stock distributed to Mr. Baffi on June 1,
2016 (based on per share market price of $87.40 on the distribution
date). |
Potential
Payments Upon Termination or Change-in-Control
We entered into an employment agreement
with Mr. Bienaimé at the time of his hire and with each of our other executive
officers, including the NEOs, in April 2007 or upon their respective date of
hire. In January 2009, to comply with the changes to Section 409A, we amended
and restated the employment agreements with each of our executive officers,
including Mr. Bienaimé. We further amended the employment agreements in December
2012 to ensure that the timing of severance payments thereunder comply with
Section 409A. In June 2015, we made certain changes to severance benefit
provisions in the employment agreements for our NEOs (other than the Chief
Executive Officer) to meet current market and peer company practices as well as
to clarify certain terms. In December 2016, we amended and restated the
employment agreement for our Chief Executive Officer primarily to adjust his
benefits in connection with a change in control, including eliminating income
tax gross-up payments in connection with a change in control as provided for
in his prior agreement and make his agreement generally more consistent with the
employment agreements for the Companys other executives. The following
discussion is based on the employment and equity award agreements with our NEOs.
The amount and type of compensation payable to each NEO upon termination of
employment under various circumstances and upon a change in control are
described below.
Payments on Termination
The amount and type of compensation
payable to each NEO upon termination of employment under various circumstances
are described below. There are three general categories of terminations, which
are:
● |
voluntary termination of employment
by the NEO for reasons not constituting constructive termination, which we
refer to as voluntary termination; retirement of the NEO; and termination
of the NEOs employment by us for cause (as such term is defined in the
employment agreements and in our stock plans), which we refer to as
termination for cause; |
● |
termination of the NEOs employment
by us for reasons not constituting cause, such as due to a companywide or
departmental reorganization, or resignation by the NEO for a good reason
specified in the NEOs employment agreement (e.g., a change in work
location of more than a specified distance from the previous location)
constituting constructive termination, which we refer to as involuntary
termination without cause; and |
● |
termination of the NEOs employment
or resignation by the NEO for a good reason in connection with a change in
control that occurs within 12 months of such change in control, which we
refer to as termination in connection with a change in
control. |
Table of Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
Compensation upon Voluntary
Termination, Retirement or Termination for Cause
Except as described above under the
Post-Employment Obligations section of this Proxy Statement,awards held by our NEOs will
not be subject to accelerated vesting or otherwise enhanced in the event of voluntary
termination, retirement, or termination for cause. A termination of employment
due to voluntary termination, retirement, or termination for cause does not
entitle the NEOs to any payments or benefits other than the accrued salary and
vacation pay and vested benefits described above. Such compensation and benefits
are available to salaried employees generally, except that any amounts payable
to the NEOs upon termination under our Nonqualified Deferred Compensation Plan
would not be applicable to certain employees as only employees with the title of
chief executive officer, vice president, and executive director are entitled to
participate in our Nonqualified Deferred Compensation Plan.
Compensation upon Involuntary
Termination without Cause
Each of the NEOs employment agreements
includes specific benefits upon an involuntary termination without cause. For
each of the NEOs, other than Mr. Bienaimé, these benefits consist of:
● |
150% of the NEOs current
annual base salary and target annual cash incentive for the year of
termination; |
● |
the NEOs target annual
cash incentive for the year of termination, pro-rated for the year in
which termination occurs; |
● |
an
additional 12 months of vesting of the NEOs unvested time-based vesting
equity awards and target amounts of performance-based equity awards that
have not vested; |
● |
paid premiums under COBRA
for 18 months; and |
● |
outplacement
services. |
Mr. Bienaimés benefits upon an
involuntary termination without cause consist of:
● |
200% of his current annual
base salary and target annual cash incentive for the year of termination;
|
● |
his target annual cash
incentive for the year of termination, pro-rated for the year in which
termination occurs; |
● |
100% vesting of all his
unvested options; |
● |
paid premiums under COBRA
for 18 months; and |
● |
reimbursement of
outplacement services in an amount not to exceed
$18,000. |
Each NEO is eligible to receive the
respective termination benefits described above within 45 days of his
termination date, provided that he executes a standard form severance
and release agreement and allows such release to
become fully effective. The cash portions of the termination benefits are
payable to the NEO in one lump sum on the 60th day after termination.
In addition, if an NEO becomes disabled while employed by us, and if (a) the NEO
is eligible to receive benefits under our Long-Term Disability Plan, then we
will pay the NEO additional compensation so that the total received by the NEO
(after taking into consideration the amounts payable to the NEO under the
Long-Term Disability Plan) equals the cash portions of the termination benefits
as described above; or (b) the NEO is not eligible to receive benefits under our
Long-Term Disability Plan, then the NEO will be entitled to the full termination
benefits described above.
Compensation upon Termination
of Employment in Connection with Change in Control
Each of the NEOs who is
involuntarily terminated in connection with a change in control is entitled to
certain benefits. For each of the NEOs other than Mr. Bienaimé, these benefits
consist of:
● |
200% of the NEOs current
annual base salary and target annual cash incentive for the year of
termination; |
● |
the NEOs target annual
cash incentive for the year of termination, pro-rated for the year in
which termination occurs; |
● |
100% vesting of all the
NEOs unvested time-based vesting equity awards and target amounts of
performance-based equity awards that have not vested;
|
● |
paid premiums under COBRA
for 24 months; and |
● |
outplacement
services. |
Mr. Bienaimés benefits for termination in
connection with a change in control consist of:
● |
300% of his current annual
base salary and target annual cash incentive for the year of termination;
|
● |
his target annual cash
incentive for the year of termination, pro-rated for the year in which
termination occurs; |
● |
100% vesting of all his
unvested time-based vesting equity awards and target amounts of
performance-based equity awards that have not vested; |
● |
paid premiums under COBRA
for 36 months; and |
● |
reimbursement of outplacement
services in an amount not to exceed
$18,000. |
The payment terms, requirement to execute
a release, and provision of termination benefits in the event an NEO becomes
disabled as described above under Compensation upon Involuntary Termination without Cause
apply equally to termination benefits for NEOs in
connection with a change in
68 |
|
|
2017 Proxy
Statement |
Table of Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
control. If termination compensation payable to an
NEO as the result of a change in control as described above would result in a
parachute payment under Section 280G of the Code, which would be subject to an
excise tax under Section 4999 of the Code, or interest or penalties are incurred
with respect to such excise tax, we will determine, before any such termination
compensation is paid to the NEO, which of the following two alternative forms of
payment would result in his receipt, on an after-tax basis, of the greater
amount of the termination compensation notwithstanding that all or some portion
of the termination compensation may be subject to the excise tax: (i) payment in
full of the entire amount of the termination compensation, or (ii) payment of
only a part of the termination compensation so that the NEO receives the largest
payment possible without the imposition of the excise tax.
Change in Control - Continued Employment
Upon a change in control without termination of employment, each of the NEOs is entitled to 100% vesting of all the NEO’s unvested time-based vesting equity
awards and target amounts of performance-based equity awards that have not vested.
Estimated Potential Payments
on Termination or Change in Control
The table below sets forth the estimated
current value of payments and benefits to each of the NEOs upon an involuntary
termination or a change in control of the Company as described above. The amounts shown assume that the triggering events
occurred on December 31, 2016 and do not include (i) benefits earned during the
term of the NEOs employment that are available to all salaried employees, such
as accrued vacation; (ii) benefits paid by insurance providers under life and
disability policies; and (iii) benefits previously accrued under the
Nonqualified Deferred Compensation Plan. The actual amounts of payments and
benefits that would be provided can only be determined at the time of the NEOs
separation from the Company. Per SEC rules, the value of accelerated options
shown in the table below is the aggregate spread between $82.84, the closing
price of our common stock on December 31, 2016 and the exercise prices of the
accelerated options, if less than $82.84. The numbers of performance-based RSUs
used in the calculation of market values of stock awards in the table below are
the actual numbers of RSUs earned by the NEOs based on achievement of
performance criteria as of December 31, 2016, the measurement date for the
performance awards.
Executive Benefits and Payments
Upon Termination or Change in Control |
|
Involuntary Termination Without Cause |
|
|
Change in
Control- Continued Employment |
|
|
Change in
Control- Terminated |
|
Jean-Jacques
Bienaimé(1): |
|
|
|
|
|
|
|
|
|
|
|
|
Cash Severance |
|
$ |
4,410,000 |
|
|
$ |
|
|
|
$ |
6,615,000 |
|
Cash Incentive |
|
|
1,155,000 |
|
|
|
|
|
|
|
1,155,000 |
|
Stock award vesting
acceleration |
|
|
1,759,102 |
(2) |
|
|
17,054,108 |
(3) |
|
|
17,054,108 |
(3) |
Benefits and
Perquisites: |
|
|
|
|
|
|
|
|
|
|
|
|
COBRA
Premiums |
|
|
54,424 |
|
|
|
|
|
|
|
108,848 |
|
Outplacement
Services |
|
|
18,000 |
(4) |
|
|
|
|
|
|
18,000 |
(4) |
Total |
|
|
7,396,526 |
|
|
|
17,054,108 |
|
|
|
24,950,956 |
|
Daniel Spiegelman: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash Severance |
|
$ |
1,284,000 |
|
|
$ |
|
|
|
$ |
1,712,000 |
|
Cash Incentive |
|
|
321,000 |
|
|
|
|
|
|
|
321,000 |
|
Stock award vesting
acceleration |
|
|
1,997,556 |
(5) |
|
|
4,718,481 |
(6) |
|
|
4,718,481 |
(6) |
Benefits and
Perquisites: |
|
|
|
|
|
|
|
|
|
|
|
|
COBRA
Premiums |
|
|
38,234 |
|
|
|
|
|
|
|
50,979 |
|
Total |
|
$ |
3,640,790 |
|
|
$ |
4,718,481 |
|
|
$ |
6,802,460 |
|
Jeff Ajer: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash Severance |
|
$ |
1,200,000 |
|
|
|
|
|
|
$ |
1,600,000 |
|
Cash Incentive |
|
|
300,000 |
|
|
|
|
|
|
|
300,000 |
|
Stock award vesting
acceleration |
|
|
1,741,698 |
(7) |
|
|
4,344,633 |
(8) |
|
|
4,344,633 |
(8) |
Benefits and
Perquisites: |
|
|
|
|
|
|
|
|
|
|
|
|
COBRA
Premiums |
|
|
54,692 |
|
|
|
|
|
|
|
72,923 |
|
Total |
|
$ |
3,296,390 |
|
|
$ |
4,344,633 |
|
|
$ |
6,317,556 |
|
Table of Contents
Proposal No.
Four: Advisory Vote on Executive
Compensation |
Executive Benefits and Payments
Upon Termination or Change in Control |
|
Involuntary Termination Without Cause |
|
|
Change in
Control- Continued Employment |
|
|
Change in
Control- Terminated |
|
Robert A. Baffi, Ph.D.: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash Severance |
|
$ |
1,200,000 |
|
|
|
|
|
|
$ |
1,600,000 |
|
Cash Incentive |
|
|
300,000 |
|
|
|
|
|
|
|
300,000 |
|
Stock award vesting
acceleration |
|
|
1,896,184 |
(9) |
|
|
4,535,065 |
(10) |
|
|
4,535,065 |
(10) |
Benefits and
Perquisites: |
|
|
|
|
|
|
|
|
|
|
|
|
COBRA
Premiums |
|
|
49,064 |
|
|
|
|
|
|
|
65,419 |
|
Total |
|
$ |
3,445,248 |
|
|
$ |
4,535,065 |
|
|
$ |
6,500,484 |
|
Henry J. Fuchs, M.D.: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash Severance |
|
$ |
1,485,000 |
|
|
|
|
|
|
$ |
1,980,000 |
|
Cash Incentive |
|
|
390,000 |
|
|
|
|
|
|
|
390,000 |
|
Stock award vesting
acceleration |
|
|
2,371,634 |
(11) |
|
|
5,633,168 |
(12) |
|
|
5,633,168 |
(12) |
Benefits and
Perquisites: |
|
|
|
|
|
|
|
|
|
|
|
|
COBRA
Premiums |
|
|
17,781 |
|
|
|
|
|
|
|
23,708 |
|
Total |
|
$ |
4,264,415 |
|
|
$ |
5,633,168 |
|
|
$ |
8,026,876 |
|
(1) |
No incremental benefits are due should the death of Mr.
Bienaimé occur, except for amounts due for services previously rendered
and those due under the life insurance policies, as discussed above.
Additionally, as is the case for all our employees as described above
under the Post-Employment Obligations section of this Proxy Statement,
if Mr. Bienaimé dies while employed by us, all his unvested equity awards
with time-based vesting will vest in full and all his unvested equity
awards with performance-based vesting will vest in full as if the target
values had been achieved, and such awards will remain exercisable for one
year after death. |
(2) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 94,594 options that would vest
upon termination. Excludes 186,957 options with exercise prices greater
than $82.84. |
(3) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 94,594 options, 125,310
service-based RSUs and 59,323 earned performance-based RSUs that would
vest upon termination. Excludes 186,957 options with exercise prices
greater than $82.84. |
(4) |
Pursuant to Mr. Bienaimés employment agreement, the
Company will reimburse Mr. Bienaimé for outplacement services in an amount
not to exceed $18,000 in the event of his involuntary termination without
cause or in connection with a change in control. |
(5) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 20,946 options, 13,535
service-based RSUs and 6,043 earned performance-based RSUs that would vest
upon termination. Excludes 22,289 options with exercise prices greater
than $82.84. |
(6) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 27,409 options, 34,715
service-based RSUs and 16,169 earned performance-based RSUs that would
vest upon termination. Excludes 50,734 options with exercise prices
greater than $82.84. |
(7) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 15,780 options, 11,622
service-based RSUs and 5,933 earned performance-based RSUs that would vest
upon termination. Excludes 21,847 options with exercise prices greater
than $82.84. |
(8) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 21,118 options, 31,865
service-based RSUs and 15,839 earned performance-based RSUs that would
vest upon termination. Excludes 49,724 options with exercise prices
greater than $82.84. |
(9) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 19,092 options, 12,822
service-based RSUs and 5,933 earned performance-based RSUs that would vest
upon termination. Excludes 21,847 options with exercise prices greater
than $82.84. |
(10) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 24,992 options, 33,365
service-based RSUs and 15,839 earned performance-based RSUs that would
vest upon termination. Excludes 49,724 options with exercise prices
greater than $82.84. |
(11) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 24,079 options, 16,097
service-based RSUs and 7,334 earned performance-based RSUs that would vest
upon termination. Excludes 27,023 options with exercise prices greater
than $82.84. |
(12) |
Based on the closing price of our common stock on
December 31, 2016 of $82.84. Relates to 31,379 options, 41,540
service-based RSUs and 19,522 earned performance-based RSUs that would
vest upon termination. Excludes 61,497 options with exercise prices
greater than $82.84. |
70 |
|
|
2017 Proxy
Statement |
Table of Contents
Proposal No.
Five: Approval of the 2017 Equity Incentive
Plan |
Our Board is requesting stockholder
approval of the BioMarin Pharmaceutical, Inc. 2017 Equity Incentive
Plan (the
2017 Plan). Pursuant to authority delegated to it by the Board, on April 10,
2017, the Compensation Committee approved the 2017 Plan, subject to approval by
our stockholders. If approved, the 2017 Plan will replace our 2006
Plan.
Why the
Board of Directors Believes You Should Vote to Approve the 2017 Equity Incentive
Plan
● |
Attracting and retaining
talent. A talented, motivated and
effective management team and workforce are essential to the Companys
continued progress. Equity compensation has been an important component of
total compensation at the Company for many years because it is effective
at getting managers and employees to think and act like owners. Between
January 2015 and March 2017, our employee headcount increased by approximately
40%. As our employee head count increases, so too will the demands on our
equity compensation program. If the 2017 Plan is approved, our ability to
offer competitive compensation packages to attract new talent and to
retain our best performers will continue. |
● |
Avoiding disruption in
compensation programs. The Board
estimates that by adopting the 2017 Plan, we will have a sufficient number
of shares of common stock to cover awards under for approximately two to
three years, depending primarily on our growth and share price. As of
March 22, 2017, only 5,419,301 of the 41,500,000 shares of common stock
authorized under the 2006 Plan remained available for future issuance. In
most of the countries where we operate, all employees below vice president
level are receiving RSUs only, and each share of common stock subject to
an RSU award counts as 1.92 shares against the reserve for the 2006 Plan.
The Board believes that the Companys employees are our most valuable
assets and that the awards permitted under the 2006 Plan are vital to our
ability to attract and retain outstanding and highly skilled individuals
in the competitive labor markets in which we compete. If the 2017 Plan is
approved, we will not have to restructure existing compensation programs
throughout the Company for reasons not directly related to the achievement
of our business objectives. To remain competitive without the approval of
the 2017 Plan, it will likely create a barrier to hiring the best talent
as our offers will not be as competitive and it will be necessary to
replace components of compensation previously awarded in equity with cash,
or with other instruments that may not necessarily align employee
interests with those of stockholders as well as equity awards would have.
Additionally, replacing equity with cash will increase cash compensation
expense and be a drain on cash flow that would be better utilized if
reinvested in our core products. |
● |
Limited shares available for issuance under existing equity compensation plans. On March 22, 2017, we made our annual
company-wide equity grant, in which we granted equity awards covering 1,919,480 shares (685,390 options and
1,234,090 performance- and time-based RSUs), equivalent to a reduction in the 2006 Plans reserve of 3,054,843 shares
because each share of common stock subject to an RSU award counts as 1.92 shares against the 2016 Plan reserve.
Following these grants, as of March 22, 2017, the remaining pool of shares available for grant under the 2006 Plan was
5,419,301, and our outstanding equity award information under all equity compensation plans (inclusive of the expired 2012
and 2014 Inducement Plans) was as follows:
|
|
● |
9,126,709 options were outstanding with a weighted average exercise price and term of $54.30 and 5.56 years,
respectively; and
|
|
● |
3,326,647 performance- and time-based RSUs were outstanding and unvested.
|
● |
The Company has demonstrated commitment to sound equity compensation practices. We recognize that equity compensation
awards dilute stockholder equity and must be used judiciously. Our equity compensation practices are designed to be in line
with industry norms, and we believe our historical share usage has been responsible and mindful of stockholder interests. Our
average burn rate (total shares used for equity compensation awards each year divided by weighted average outstanding
shares for the year) for the last three years (fiscal years 2014-2016) was 2.2%, which was well below the Institutional |
Table of Contents
Proposal No. Five:
Approval of the 2017 Equity Incentive
Plan |
|
Shareholder Services
industry cap for companies in Global Industry Classification Standard
(GICS) 3520 (Pharmaceuticals, Biotechnology & Life Sciences) in the
Russell 3000 of 6.53%. The Companys dilution level or overhang (shares
subject to equity compensation awards outstanding at fiscal year-end or
available to be used for equity compensation, divided by fully diluted
shares outstanding) at the end of fiscal year 2016 was
11.5%. |
● |
Company is continuing to rapidly
grow in response to its pipeline products and previous
acquisitions. We anticipate the need to
hire new employees and also to incentivize existing employees and other
plan participants to properly commercialize our pipeline products and
enhance the commercialization of our existing products. We believe that
our stockholders long-term interests are best served by equity
compensation awards designed to achieve these
goals. |
Key Plan
Features Representing Corporate Governance Best Practices
The 2017 Plan includes provisions that are
designed to protect our stockholders interests and to reflect corporate
governance best practices including:
● |
Repricing is not allowed. The
2017 Plan prohibits the repricing of outstanding stock options and stock
appreciation rights and the cancellation of any outstanding stock options
or stock appreciation rights that have an exercise or strike price greater
than the then-current fair market value of our common stock in exchange
for cash or other stock awards under the 2017 Plan without prior
stockholder approval. |
● |
Restrictions on payment of
dividends and dividend equivalents. The 2017 Plan provides that
dividends and dividend equivalents shall not be paid in respect of shares
of common stock covered by a stock award until such shares of common stock
vest. |
● |
No liberal share recycling.
The 2017 Plan does not provide for liberal share recycling. For example,
shares withheld on net exercises of options, shares withheld to meet tax
obligations and shares repurchased by the Company using stock option
proceeds do not return to the plan to be granted pursuant to future
awards. |
● |
Awards subject to
forfeiture/clawback. Awards granted under the 2017 Plan will be
subject to recoupment in accordance with any clawback policy that we are
required to adopt pursuant to the listing standards of any national
securities exchange or association on which our securities are listed or
as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer
Protection Act or other applicable law. In addition, we may impose other
clawback, recovery or recoupment provisions in an award agreement,
including a reacquisition right in respect of previously acquired shares
or other cash or property upon the occurrence of cause. As noted on page
79 of this proxy, the Company maintains a Policy for Recoupment of
Incentive Compensation. |
● |
No liberal change in control
definition. The change in control definition in the 2017 Plan is not a
liberal definition (for example, it does not provide for a change in
control upon merely the signing of a
definitive change in control agreement). A change in control transaction
must actually occur in order for the change in control provisions in the
2017 Plan to be triggered. |
● |
No discounted stock options or
stock appreciation rights. All stock
options and stock appreciation rights granted under the 2017 Plan must
have an exercise or strike price equal to or greater than the fair market
value of our common stock on the date the stock option or stock
appreciation right is granted. |
● |
Administration by independent
committee. The 2017 Plan will be
administered by the members of our Compensation Committee, all of whom are
non-employee directors within the meaning of Rule 16b-3 under the
Exchange Act and independent within the meaning of the NASDAQ listing
standards. In addition, all of the members of our Compensation Committee,
which has been delegated certain authorities with respect to awards that
are intended to qualify as performance-based compensation under Section
162(m) of the Code, are outside directors within the meaning of Section
162(m) of the Code. |
● |
Material amendments require
stockholder approval. Consistent with
NASDAQ rules, the 2017 Plan requires stockholder approval of any material
revisions to the 2017 Plan. In addition, certain other amendments to the
2017 Plan require stockholder approval. |
72 |
|
|
2017 Proxy
Statement |
Table of Contents
Proposal No. Five:
Approval of the 2017 Equity Incentive
Plan |
● |
Limit on non-employee director
aggregate compensation. The maximum
aggregate value of all compensation granted or paid, as applicable, to any
of our non-employee directors for service on the Board with respect to any
one calendar year (beginning with the 2018 calendar year) may not exceed
$1,000,000 in total value (calculating the value of any stock awards based
on the grant date fair value of such stock awards for financial reporting
purposes), or, with respect to the calendar year in which a non-employee
director is first appointed or elected to the Board, $1,500,000.
|
Performance-Based Awards and Section 162(m)
Approval of the 2017 Plan by our
stockholders will also constitute approval of terms and conditions set forth
therein that will permit us to grant stock options, stock appreciation rights
and performance-based stock and cash awards under the 2017 Plan that may qualify
as performance-based compensation within the meaning of Section 162(m) of the
Code. Section 162(m) of the Code disallows a deduction to any publicly held
corporation and its affiliates for certain compensation paid to covered
employees in a taxable year to the extent that compensation to a covered
employee exceeds $1,000,000. However, some kinds of compensation, including
qualified performance-based compensation, are not subject to this deduction
limitation. For compensation awarded under a plan to qualify as
performance-based compensation under Section 162(m) of the Code, among other
things, the following terms must be disclosed to and approved by the
stockholders before the compensation is paid: (i) a description of the employees
eligible to receive such awards; (ii) a per-person limit on the number of shares
subject to stock options, stock appreciation rights and performance-based stock
awards, and the amount of cash subject to performance-based cash awards,
that may be granted to any employee under the
plan in any year; and (iii) a description of the business criteria upon which
the performance goals for performance-based awards may be granted (or become
vested or exercisable). Accordingly, we are requesting that our stockholders
approve the 2017 Plan, which includes terms and conditions regarding eligibility
for awards, annual per-person limits on awards and the business criteria for
performance-based awards granted under the 2017 Plan (as described in the
summary below).
We believe it is in the best interests of
our company and our stockholders to preserve the ability to grant
performance-based compensation under Section 162(m) of the Code. However, in
certain circumstances, we may determine to grant compensation to covered
employees that is not intended to qualify as performance-based compensation
for purposes of Section 162(m) of the Code. Moreover, even if we grant
compensation that is intended to qualify as performance-based compensation for
purposes of Section 162(m) of the Code, we cannot guarantee that such
compensation ultimately will be deductible by us.
Stockholder
Approval
If this Proposal No. Five is approved by
our stockholders, the 2017 Plan will become effective as of the date of the
Annual Meeting , June 6, 2017 (the Effective Date), and no additional awards
will be granted under the 2006 Plan (although all outstanding awards granted
under the 2006 Plan, and also under the Companys 1997 Stock Plan and the
Companys 1998 Director Option Plan (collectively with the 2006 Plan, the
Prior Plans) under which no additional awards
could be issued as of the effective date of the 2006 Plan, will continue to be
subject to the terms and conditions as set forth in the agreements evidencing
such awards and the terms of the Prior Plans). In the event that our
stockholders do not approve this Proposal No. Five, the 2017 Plan will not
become effective and the 2006 Plan will continue to be effective in accordance
with its terms.
Table of Contents
Proposal No. Five:
Approval of the 2017 Equity Incentive
Plan |
Description
of the 2017 Plan
The material features of the 2017 Plan are
described below. The following description of the 2017 Plan is a summary only
and is qualified in its entirety by reference to the complete text of the 2017
Plan. Stockholders are urged to read the actual text of the 2017 Plan in its
entirety, which is attached to this proxy statement as Appendix A.
Purpose
The 2017 Plan is designed to secure and
retain the services of our employees, directors and consultants, provide
incentives for our employees, directors and consultants to exert maximum efforts
for the success of our company and our affiliates, and provide a means by which
our employees, directors and consultants may be given an opportunity to benefit
from increases in the value of our common stock.
Types of
Awards
The terms of the 2017 Plan provide for the
grant of incentive stock options, nonstatutory stock options, stock appreciation
rights, restricted stock awards, RSU awards, other stock awards, and performance
awards that may be settled in cash, stock, or other property.
Shares
Available for Awards
Subject to adjustment for certain changes
in our capitalization, the total number of shares that maybe issued under the
2017 Plan will not exceed 20,880,015
shares, which is the sum of (i) 5,250,000 new
shares, plus (ii) 5,517,942 shares, which is the estimate of the number of shares
subject to the 2006 Plans available reserve as of the Effective Date,
plus (iii)
10,112,073 shares, which is the estimated maximum number of shares that are
subject to outstanding stock awards granted under the 2006 Plan as of the
Effective Date that subsequently (A) expire or terminate for any reason prior to
exercise or settlement, or (B) are forfeited because of the failure to meet a
contingency or condition required to vest such shares (Returning Shares). The
number of Returning Shares included in the calculation of the Share Reserve
above is the estimated maximum number, determined as if every outstanding stock award under
the 2006 Plan as of the Effective Date subsequently expired, terminated or was
forfeited. Such Returning Shares would previously have returned to the 2006
Plan, and will instead return to the 2017 Plan, if approved. For every one share of
common stock that is subject to a stock award other than an option or stock
appreciation right, the shares available for issuance under the 2017 Plan will
be reduced by 1.92 shares. For every one share of common stock that is subject
to an option or stock appreciation right, the shares available for issuance
under the 2017 Plan will be reduced by one share.
The following shares of our common stock
will become available again for issuance under the 2017 Plan: (A) any shares
subject to a stock award that are not issued because the stock award or any
portion thereof expires or otherwise terminates without all of the shares
covered by such stock award having been issued; (B) any shares issued pursuant
to a stock award that are forfeited back to or repurchased by the Company
because of the failure to meet a contingency or condition required for the
vesting of such shares. Any shares that again become available for issuance will be added back as (a) one (1) share for every one
(1) share that is subject to an award granted under the 2006 Plan prior to May
12, 2010; (b) one (1) share for every one (1) share that is subject to an option
granted under the 2006 Plan on or after May 12, 2010; (c) 1.62 shares for every
one (1) share that is subject to any award granted under the 2006 Plan on or
after May 12, 2010 and prior to May 15, 2013 other than an option; (d) 1.92
shares for every one (1) share that is subject to any award granted under the
2006 Plan on or after May 15, 2013 other than an option; (e) one (1) share for
every one (1) share that is subject to an Option or SAR granted under the 2017
Plan; and (f) 1.92 shares for every one (1) share that is subject to an award
granted under the 2017 Plan other than an option or stock appreciation
right.
The following shares of our common stock
will not become available again for issuance under the 2017 Plan: (A) any shares
that are reacquired or withheld (or not issued) by the Company to satisfy the
exercise, strike or purchase price of a stock award granted under the 2017 Plan
or a stock award granted under the Prior Plans (including any shares subject to
such award that are not delivered because such award is exercised through a
reduction of shares subject to such award (i.e., net exercised); (B) any
shares that are reacquired or withheld (or not issued) by the Company to satisfy
a tax withholding obligation in connection with a Stock Award granted under the
Plan or a stock award granted under the Prior
74 |
|
|
2017 Proxy
Statement |
Table of Contents
Proposal No. Five:
Approval of the 2017 Equity Incentive
Plan |
Plans; (C) any shares repurchased
by the Company on the open market with the proceeds of the exercise, strike or
purchase price of a stock award granted under the Plan or a stock award granted
under the Prior Plans; and (D) in the event that a stock appreciation right
granted under the Plan or a stock appreciation right granted under the Prior
Plans is settled in shares of common stock, the gross number of shares of common
stock subject to such award.
Eligibility
All of our (including our affiliates)
approximately 2,351 employees, nine non-employee directors and 1,227 consultants
as of March 27, 2017 are eligible to participate in the 2017 Plan and may
receive all types of awards other than incentive stock options. Incentive stock
options may be granted under the 2017 Plan only to our employees (including
officers) and employees of our affiliates.
Section
162(m) Limits
Under the 2017 Plan, subject to adjustment
for certain changes in our capitalization, no participant will be eligible to be
granted performance-based compensation during any calendar year more than: (i) a
maximum of 1,000,000 shares of our common stock subject to stock options and
stock appreciation rights whose value is determined by reference to an increase
over an exercise or strike price of at least 100% of the fair market value of
our common stock on the date of grant; (ii) a maximum of 1,000,000 shares of our common stock subject to performance stock awards;
and (iii) a maximum of $10,000,000 subject to performance cash awards. These
limits are designed to allow us to grant awards that are intended to be exempt
from the $1,000,000 limitation on the income tax deductibility of compensation
paid per covered employee imposed by Section 162(m) of the Code, and will not
apply to awards that the Board determines will not be treated as
performance-based compensation.
Non-Employee Director Compensation Limit
Under the 2017 Plan, the maximum aggregate
value of all compensation granted or paid, as applicable, to any of our
non-employee directors for service on the Board with respect to any one calendar
year (beginning with the 2018 calendar year) may not exceed $1,000,000 in total
value (calculating the value of any stock awards
based on the grant date fair value of such stock awards for financial reporting
purposes), or, with respect to the calendar year in which a non-employee
director is first appointed or elected to the Board, $1,500,000.
Administration
The 2017 Plan will be administered by our
Board, which may in turn delegate authority to administer the 2017 Plan to a
committee. The Board and the Compensation Committee are each considered to be a
Plan Administrator for purposes of this Proposal No. Five. Subject to the terms
of the 2017 Plan, the Plan Administrator may determine the recipients, the types
of awards to be granted, the number of shares of our common stock subject to or
the cash value of awards, and the terms and conditions of awards granted under
the 2017 Plan, including the period of their exercisability and vesting. The
Plan Administrator also has the authority to provide for accelerated
exercisability and vesting of awards. Subject to the limitations set forth below, the Plan Administrator also determines the
fair market value applicable to a stock award and the exercise or strike price
of stock options and stock appreciation rights granted under the 2017
Plan.
The Plan Administrator may also delegate
to one or more officers the authority to designate employees who are not
officers to be recipients of certain stock awards and the number of shares of
our common stock subject to such stock awards. Under any such delegation, the
Plan Administrator will specify the total number of shares of our common stock
that may be subject to the stock awards granted by such officer. The officer may
not grant a stock award to himself or herself.
Repricing;
Cancellation and Re-Grant of Stock Awards
Under the 2017 Plan, the Plan
Administrator does not have the authority to reprice any outstanding stock
option or stock appreciation right by reducing the exercise or strike price of
the stock option or stock appreciation right or to cancel any outstanding stock
option or stock appreciation right that has an exercise or strike price greater than the then-current fair market value
of our common stock in exchange for cash or other stock awards without obtaining
the approval of our stockholders. Such approval must be obtained within 12
months prior to such an event.
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Stock
Options
Stock options may be granted under the
2017 Plan pursuant to stock option agreements. The 2017 Plan permits the grant
of stock options that are intended to qualify as incentive stock
options (ISOs) and nonstatutory stock options (NSOs).
The exercise price of a stock option
granted under the 2017 Plan may not be less than 100% of the fair market value
of the common stock subject to the stock option on the date of grant and, in
some cases (see Limitations on Incentive Stock Options below), may not be less than 110% of such fair market value.
The term of
stock options granted under the 2017 Plan may not exceed ten years and, in some
cases (see Limitations on Incentive Stock Options below), may not exceed five
years. Except as otherwise provided in a participants stock option agreement or
other written agreement with us or one of our affiliates, if a participants
service relationship with us or any of our affiliates (referred to in this
Proposal No. Five as continuous service) terminates (other than for cause
and other than upon the participants death or disability), the participant may
exercise any vested stock options for up to three months following the
participants termination of continuous service. Except as otherwise provided in
a participants stock option agreement or other written agreement with us or one
of our affiliates, if a participants continuous service terminates due to the
participants disability or death (or the participant dies within a specified
period, if any, following termination of continuous service), the participant,
or his or her beneficiary, as applicable, may exercise any vested stock options
for up to 12 months following the participants termination due to the
participants disability or for up to 12 months following the participants
death. Except as explicitly provided otherwise in a participants stock option
agreement or other written agreement with us or one of our affiliates, if a
participants continuous service is terminated for cause (as defined in the 2017
Plan), all stock options held by the participant will terminate upon the
participants termination of continuous service and the participant will be
prohibited from exercising any stock option from and after such termination
date. Except as otherwise provided in a participants stock option agreement or
other written agreement with us or one of our affiliates, the term of a stock
option may be extended if the exercise of the stock option following the
participants termination of continuous service (other than for cause and other
than upon the participants death or disability) would be prohibited by
applicable securities laws or if the sale of any common stock received upon
exercise of the stock option following the participants termination of
continuous service (other than for cause) would violate our insider trading
policy. In no event, however, may a stock option be exercised after its original
expiration date.
Acceptable forms of consideration for the
purchase of our common stock pursuant to the exercise of a stock option under
the 2017 Plan will be determined by the Plan Administrator and may include
payment: (i) by cash, check, bank draft or money order payable to us; (ii)
pursuant to a program developed under Regulation T as promulgated by the Federal
Reserve Board; (iii) by delivery to us of shares of our common stock (either by
actual delivery or attestation); (iv) by a net exercise arrangement (for NSOs
only); or (v) in other legal consideration approved by the Plan
Administrator.
Stock options granted under the 2017 Plan
may become exercisable in cumulative increments, or vest, as determined by the
Plan Administrator at the rate specified in the stock option agreement. Shares
covered by different stock options granted under the 2017 Plan may be subject to
different vesting schedules as the Plan Administrator may determine.
The Plan Administrator may impose
limitations on the transferability of stock options granted under the 2017 Plan
in its discretion. Generally, a participant may not transfer a stock option
granted under the 2017 Plan other than by will or the laws of descent and
distribution or, subject to approval by the Plan Administrator, pursuant to a
domestic relations order or an official marital settlement agreement. However,
the Plan Administrator may permit transfer of a stock option in a manner that is
not prohibited by applicable tax and securities laws. In addition, subject to
approval by the Plan Administrator, a participant may designate a beneficiary
who may exercise the stock option following the participants death.
Limitations
on Incentive Stock Options
The aggregate fair market value,
determined at the time of grant, of shares of our common stock with respect to
ISOs that are exercisable for the first time by a participant during any
calendar year under all of our stock plans may not exceed $100,000. The stock
options or portions of stock options that exceed this limit or otherwise fail to
qualify as ISOs are treated as NSOs. No ISO may be granted to any person who, at
the time of
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grant, owns or is deemed to own stock possessing more than 10% of
our total combined voting power or that of any affiliate unless the following
conditions are satisfied:
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the exercise price of the ISO must
be at least 110% of the fair market value of the common stock subject to
the ISO on the date of grant; and |
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the term of the ISO must not exceed
five years from the date of grant. |
Subject to adjustment for certain changes
in our capitalization, the aggregate maximum number of shares of our common
stock that may be issued pursuant to the exercise of ISOs under the 2017 Plan is
41,760,030 shares.
Stock
Appreciation Rights
Stock appreciation rights may be granted
under the 2017 Plan pursuant to stock appreciation right agreements. Each stock
appreciation right is denominated in common stock share equivalents. The strike
price of each stock appreciation right will be
determined by the Plan Administrator, but will in no event be less than 100% of
the fair market value of the common stock subject to the stock appreciation
right on the date of grant. The Plan Administrator may also impose restrictions
or conditions upon the vesting of stock
appreciation rights that it deems appropriate. The appreciation distribution
payable upon exercise of a stock appreciation right may be paid in shares of our
common stock, in cash, in a combination of cash and stock, or in any other form
of consideration determined by the Plan
Administrator and set forth in the stock appreciation right agreement. Stock
appreciation rights will be subject to the same conditions upon termination of
continuous service and restrictions on transfer as stock options under the 2017
Plan.
Restricted
Stock Awards
Restricted stock awards may be granted
under the 2017 Plan pursuant to restricted stock award agreements. A restricted
stock award may be granted in consideration for cash, check, bank draft or money
order payable to us, the participants services performed for us or any of our
affiliates, or any other form of legal consideration acceptable to the Plan
Administrator. Shares of our common stock acquired under a restricted stock
award may be subject to forfeiture to or repurchase by us in accordance with a
vesting schedule to be determined by the Plan Administrator. Rights to acquire
shares of our common stock under a restricted stock award may be transferred
only upon such terms and conditions as are set forth in the restricted stock
award agreement. A restricted stock award agreement may provide that any
dividends paid on restricted stock will be subject to the same vesting
conditions as apply to the shares subject to the restricted stock award. Upon a
participants termination of continuous service for any reason, any shares
subject to restricted stock awards held by the participant that have not vested
as of such termination date may be forfeited to or repurchased by us.
Restricted
Stock Unit Awards
RSU awards may be granted under the 2017
Plan pursuant to RSU award agreements. Payment of any purchase price may be made
in any form of legal consideration acceptable to the Plan Administrator. A RSU
award may be settled by the delivery of shares of our common stock, in cash, in
a combination of cash and stock, or in any other form of consideration
determined by the Plan Administrator and set forth in the RSU award agreement.
RSU awards may be subject to vesting in accordance with a vesting schedule to be
determined by the Plan Administrator.
Dividend equivalents may be credited in
respect of shares of our common stock covered by a RSU award, provided that any
additional shares credited by reason of such dividend equivalents will be
subject to all of the same terms and conditions of the underlying RSU award.
Except as otherwise provided in a participants RSU award agreement or other
written agreement with us or one of our affiliates, RSUs that have not vested
will be forfeited upon the participants termination of continuous service for
any reason.
Performance
Awards
The 2017 Plan allows us to grant
performance stock and cash awards, including such awards that may qualify as
performance-based compensation that is not subject to the $1,000,000 limitation
on the income tax deductibility of compensation paid per covered employee
imposed by Section 162(m) of the Code.
A performance stock award is a stock award
that is payable (including that may be granted, may vest, or may be exercised)
contingent upon the attainment of pre-determined performance goals during a
performance period. A performance stock award may require the completion of a
specified period of continuous
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Proposal No. Five:
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Plan |
service. The length of any performance period,
the performance goals to be achieved during the performance period, and the
measure of whether and to what degree such performance goals have been attained
will be determined by our Compensation Committee, except that the Plan
Administrator also may make any such determinations to the extent that the award
is not intended to qualify as performance-based compensation under Section
162(m) of the Code. In addition, to the extent permitted by applicable law and the performance stock award agreement, the Plan
Administrator may determine that cash may be used in payment of performance
stock awards.
A performance cash award is a cash award
that is payable contingent upon the attainment of pre-determined performance
goals during a performance period. A performance cash award may require the
completion of a specified period of continuous service. The length of any
performance period, the performance goals to be achieved during the performance
period, and the measure of whether and to what degree such performance goals
have been attained will be determined by our Compensation Committee, except that
the Plan Administrator also may make any such determinations to the extent that
the award is not intended to qualify as performance-based compensation under
Section 162(m) of the Code. The Plan Administrator may specify the form of
payment of performance cash awards, which may be cash or other property, or may
provide for a participant to have the option for his or her performance cash
award to be paid in cash or other property.
In granting a performance stock or cash
award intended to qualify as performance-based compensation under Section
162(m) of the Code, our Compensation Committee will set a period of time, or a
performance period, over which the attainment of one or more goals, or
performance goals, will be measured. Within the time period prescribed by
Section 162(m) of the Code (no later than the earlier of the 90th day of a
performance period and the date on which 25% of the performance period has
elapsed, and in any event at a time when the achievement of the performance
goals remains substantially uncertain), our Compensation Committee will
establish the performance goals, based upon one or more criteria, or performance
criteria, enumerated in the 2017 Plan and described below. As soon as
administratively practicable following the end of the performance period, our
Compensation Committee will certify in writing whether the performance goals
have been satisfied.
Performance goals under the 2017 Plan will
be based on any one or more of the following performance criteria: (i) earnings
(including earnings per share and net earnings); (ii) earnings before interest,
taxes and depreciation; (iii) earnings before interest, taxes, depreciation and
amortization; (iv) earnings before interest, taxes, depreciation, amortization
and legal settlements; (v) earnings before interest, taxes, depreciation,
amortization, legal settlements and other income (expense); (vi) earnings before
interest, taxes, depreciation, amortization, legal settlements, other income
(expense) and stock-based compensation; (vii) earnings before interest, taxes,
depreciation, amortization, legal settlements, other income (expense),
stock-based compensation and changes in deferred revenue; (viii) earnings before
interest, taxes, depreciation, amortization, legal settlements, other income
(expense), stock-based compensation, other non-cash expenses and changes in
deferred revenue; (ix) total shareholder return; (x) return on equity or average
shareholders equity; (xi) return on assets, investment, or capital employed;
(xii) stock price; (xiii) margin (including gross margin); (xiv) income (before
or after taxes); (xv) operating income; (xvi) operating income after taxes;
(xvii) pre-tax profit; (xviii) operating cash flow; (xix) sales or revenue
targets; (xx) increases in revenue or product revenue; (xxi) expenses and cost
reduction goals; (xxii) improvement in or attainment of working capital levels;
(xxiii) economic value added (or an equivalent metric); (xxiv) market share;
(xxv) cash flow; (xxvi) cash flow per share; (xxvii) cash balance; (xxviii) cash
burn; (xxix) cash collections; (xxx) share price performance; (xxxi) debt
reduction; (xxxii) implementation or completion of projects or processes
(including, without limitation, clinical trial initiation, clinical trial
enrollment and dates, clinical trial results, regulatory filing submissions,
regulatory filing acceptances, regulatory or advisory committee interactions,
regulatory approvals, and product supply); (xxxiii) shareholders equity;
(xxxiv) capital expenditures; (xxxv) debt levels;
(xxxvi) operating profit or net operating profit; (xxxvii) workforce diversity;
(xxxviii) growth of net income or operating income; (xxxix) billings; (xl)
bookings; (xli) employee retention; (xlii) initiation of studies by specific
dates; (xliii) budget management; (xliv) submission to, or approval by, a
regulatory body (including, but not limited to the FDA of an applicable filing
or a product; (xlv) regulatory milestones; (xlvi) progress of internal research
or development programs; (xlvii) acquisition of new customers; (xlviii) customer
retention and/or repeat order rate; (xlix) improvements in sample and test
processing times; (l) progress of partnered programs; (li) partner satisfaction;
(lii) timely completion of clinical trials; (liii) submission of 510(k)s or
pre-market approvals and other regulatory achievements; (liv) milestones related
to research development (including, but not limited to, preclinical and clinical
studies), product development and manufacturing; (lv) expansion of sales in
additional geographies or markets; (lvi) research progress, including the
development of programs; (lvii) strategic partnerships or transactions
(including in-licensing and out-licensing of intellectual property; and (lviii)
and to the extent that an award is not intended to comply with Section 162(m) of
the Code, other measures of performance selected by the Board or the
Compensation Committee.
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Performance goals may be based on a
company-wide basis, with respect to one or more business units, divisions,
affiliates or business segments, and in either absolute terms or relative to the
performance of one or more comparable companies or the performance of one or
more relevant indices. Our Compensation Committee (or, to the extent that an
award is not intended to qualify as performance-based compensation under
Section 162(m) of the Code, the Plan Administrator) is authorized to make
appropriate adjustments in the method of calculating the attainment of
performance goals for a performance period as follows; provided, however, that to
the extent that an award is intended to qualify as performance-based
compensation under Section 162(m) of the Code, any such adjustment may be made
only if such adjustment is objectively determinable and specified in the award
agreement at the time the award is granted or in such other document setting
forth the performance goals for the award at the time the performance goals are
established: (1) to exclude restructuring and/or other nonrecurring charges; (2)
to exclude exchange rate effects; (3) to exclude the effects of changes to
generally accepted accounting principles; (4) to exclude the effects of any
statutory adjustments to corporate tax rates; (5) to exclude the effects of any
items that are unusual in nature or occur infrequently as determined under
generally accepted accounting principles; (6) to exclude the dilutive effects of
acquisitions or joint ventures; (7) to assume that any business divested by the
Company achieved performance objectives at targeted levels during the balance of a
Performance Period following such divestiture; (8) to exclude the effect of any
change in the outstanding shares of common stock of the Company by reason of any
stock dividend or split, stock repurchase, reorganization, recapitalization,
merger, consolidation, spin-off, combination or exchange of shares or other
similar corporate change, or any distributions to common shareholders other than
regular cash dividends; (9) to exclude the effects of stock based compensation
and the award of bonuses under the Companys bonus plans; (10) to exclude costs
incurred in connection with potential acquisitions or divestitures that are
required to be expensed under generally accepted accounting principles; (11) to
exclude the goodwill and intangible asset impairment charges that are required
to be recorded under generally accepted accounting principles; (12) to exclude
the effects of the timing of acceptance for review and/or approval of
submissions to the FDA or any other regulatory body; and (13) to the extent that
an Award is not intended to qualify as performance-based compensation under
Section 162(m) of the Code, to make other appropriate adjustments selected by
the Board or the Committee.
In addition, our Compensation Committee
(or, to the extent that an award is not intended to qualify as
performance-based compensation under Section 162(m) of the Code, the Plan
Administrator) retains the discretion to reduce or eliminate the compensation or
economic benefit due upon the attainment of any performance goals and to define
the manner of calculating the performance criteria it selects to use for a
performance period.
Other Stock Awards
Other forms of stock awards valued in
whole or in part by reference to, or otherwise based on, our common stock may be
granted either alone or in addition to other stock awards under the 2017 Plan.
The Plan Administrator will have sole and complete authority to determine the persons to whom and the time or times
at which such other stock awards will be granted, the number of shares of our
common stock to be granted and all other terms and conditions of such other
stock awards.
Clawback
Policy
Awards granted under the 2017 Plan will be
subject to recoupment in accordance with any clawback policy that we are
required to adopt pursuant to the listing standards of any national securities
exchange or association on which our securities are listed or as is otherwise
required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or
other applicable law. In addition, the Plan Administrator may impose other
clawback, recovery or recoupment provisions in an award agreement as the Plan
Administrator determines necessary or appropriate, including a reacquisition
right in respect of previously acquired shares of our common stock or other cash
or property upon the occurrence of cause.
Changes to
Capital Structure
In the event of certain capitalization
adjustments, the Plan Administrator will appropriately adjust: (i) the class(es)
and maximum number of securities subject to the 2017 Plan; (ii) the class(es)
and maximum number of securities that may be issued pursuant to the exercise of
ISOs; (iii) the class(es) and maximum number of securities that may be awarded
to any participant pursuant to Section 162(m) limits; and (iv) the class(es) and
number of securities and price per share of stock subject to outstanding stock
awards.
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Corporate
Transaction
In the event of a transaction (as defined
in the 2017 Plan and described below), the Plan Administrator may take one or
more of the following actions with respect to stock awards, contingent upon the
closing or consummation of the corporate transaction, unless otherwise provided
in the instrument evidencing the stock award, in any other written agreement
between us or one of our affiliates and the participant or in our director
compensation policy, or unless otherwise provided by the Plan Administrator at
the time of grant of the stock award:
● |
arrange for the surviving or
acquiring corporation (or its parent company) to assume or continue the
stock award or to substitute a similar stock award for the stock award
(including an award to acquire the same consideration paid to our
stockholders pursuant to the corporate transaction); |
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arrange for the assignment of any
reacquisition or repurchase rights held by us in respect of our common
stock issued pursuant to the stock award to the surviving or acquiring
corporation (or its parent company); |
● |
accelerate the vesting (and, if
applicable, the exercisability), in whole or in part, of the stock award
to a date prior to the effective time of the corporate transaction as
determined by the Plan Administrator (or, if the Plan Administrator does
not determine such a date, to the date that is five days prior to the
effective date of the corporate transaction), with the stock award
terminating if not exercised (if applicable) at or prior to the effective
time of the corporate transaction; |
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arrange for the lapse of any
reacquisition or repurchase rights held by us with respect to the stock
award; |
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cancel or arrange for the
cancellation of the stock award, to the extent not vested or not exercised
prior to the effective time of the corporate transaction, and pay such
cash consideration, if any, as the Plan Administrator may consider
appropriate; and |
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make a payment, in such form as may
be determined by the Board, equal to the excess, if any, of (A) the per
share amount payable to holders of common stock in connection with the
transaction, over (B) any per share exercise price under the applicable
award. For clarity, this payment may be zero ($0) if the value of the
property is equal to or less than the
exercise price. In addition, any escrow, holdback, earnout or similar
provisions in the definitive agreement for the corporate transaction may
apply to such payment to the same extent and in the same manner as such
provisions apply to the holders of common stock.
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The Plan Administrator is not required to
take the same action with respect to all stock awards or portions of stock
awards or with respect to all participants. The Plan Administrator may take
different actions with respect to the vested and unvested portions of a stock
award.
For purposes of the 2017 Plan, a
transaction generally will be deemed to occur in the event of the consummation
of a change in control (as described below) or a corporate transaction, which is
defined as: (i) a sale or other disposition of all or substantially all of our
consolidated assets; (ii) a sale or other disposition of more than 50% of our
outstanding securities; (iii) a merger, consolidation or similar transaction
following which we are not the surviving corporation; or (iv) a merger,
consolidation or similar transaction following which we are the surviving
corporation but the shares of our common stock outstanding immediately prior to
the transaction are converted or exchanged into other property by virtue of the
transaction.
Change in
Control
Under the 2017 Plan, a stock award may be
subject to additional acceleration of vesting and exercisability upon or after a
change in control (as defined in the 2017 Plan and described below) as may be
provided in the participants stock award agreement, in any other written
agreement with us or one of our affiliates or in our director compensation
policy, but in the absence of such provision, no such acceleration will occur.
For purposes of the 2017 Plan, a change in control generally will be deemed to
occur in the event: (i) a person, entity or group acquires, directly or
indirectly, our securities representing more than 50% of the combined voting
power of our then outstanding securities, other than by virtue of a merger,
consolidation, or similar transaction; (ii) there is consummated a merger,
consolidation, or similar transaction and, immediately after the consummation of
such transaction, our stockholders immediately
prior thereto do not own, directly or indirectly, more than 50% of the combined
outstanding voting power of the surviving entity or the parent of the surviving
entity in substantially the same proportions as their ownership of our
outstanding voting securities immediately prior to such transaction; (iii) there
is consummated a sale or other disposition of all or substantially all
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of our
consolidated assets, other than a sale or other disposition to an entity in
which more than 50% of the entitys combined voting power is owned by our
stockholders in substantially the same proportions as their ownership of our
outstanding voting securities immediately prior to such sale or other
disposition; (iv) we experience a complete liquidation or dissolution; or (v) a
majority of our Board becomes comprised of individuals whose nomination,
appointment, or election was not approved by a majority of the Board members or
their approved successors.
Plan
Amendments and Termination
The Plan Administrator will have the
authority to amend or terminate the 2017 Plan at any time. However, except as
otherwise provided in the 2017 Plan or an award agreement, no amendment or
termination of the 2017 Plan may materially impair a participants rights under
his or her outstanding awards without the participants consent.
We will obtain stockholder approval of any
amendment to the 2017 Plan as required by applicable law and listing
requirements. No ISOs may be granted under the 2017 Plan after the tenth
anniversary of the date the 2017 Plan was adopted by our Board.
U.S. Federal Income
Tax Consequences
The following is a summary of the
principal U.S. federal income tax consequences to participants and us with
respect to participation in the 2017 Plan. This summary is not intended to be
exhaustive and does not discuss the income tax laws of any local, state or
foreign jurisdiction in which a participant may reside. The information is based
upon current federal income tax rules and therefore is subject to change when
those rules change. Because the tax consequences to any participant may depend
on his or her particular situation, each participant should consult the
participants tax adviser regarding the federal, state, local and other tax consequences of the grant or exercise of an
award or the disposition of stock acquired the 2017 Plan. The 2017 Plan is not
qualified under the provisions of Section 401(a) of the Code and is not subject
to any of the provisions of the Employee Retirement Income Security Act of 1974.
Our ability to realize the benefit of any tax deductions described below depends
on our generation of taxable income as well as the requirement of
reasonableness, the provisions of Section 162(m) of the Code and the
satisfaction of our tax reporting obligations.
Nonstatutory Stock Options
Generally, there is no taxation upon the
grant of an NSO if the stock option is granted with an exercise price equal to
the fair market value of the underlying stock on the grant date. Upon exercise,
a participant will recognize ordinary income equal to the excess, if any, of the
fair market value of the underlying stock on the date of exercise of the stock
option over the exercise price. If the participant is employed by us or one of
our affiliates, that income will be subject to withholding taxes. The
participants tax basis in those shares will be equal to their fair market value
on the date of exercise of the stock option, and
the participants capital gain holding period for those shares will begin on
that date.
Subject to the requirement of
reasonableness, the provisions of Section 162(m) of the Code and the
satisfaction of a tax reporting obligation, we will generally be entitled to a
tax deduction equal to the taxable ordinary income realized by the
participant.
Incentive
Stock Options
The 2017 Plan provides for the grant of
stock options that are intended to qualify as incentive stock options, as
defined in Section 422 of the Code. Under the Code, a participant generally is
not subject to ordinary income tax upon the grant or exercise of an ISO. If the
participant holds a share received upon exercise of an ISO for more than two
years from the date the stock option was granted and more than one year from the
date the stock option was exercised, which is referred to as the required
holding period, the difference, if any, between the amount realized on a sale or
other taxable disposition of that share and the participants tax basis in that
share will be long-term capital gain or loss.
If, however, a participant disposes of a
share acquired upon exercise of an ISO before the end of the required holding
period, which is referred to as a disqualifying disposition, the
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participant
generally will recognize ordinary income in the year of the disqualifying
disposition equal to the excess, if any, of the fair market value of the share
on the date of exercise of the stock option over the exercise price. However, if
the sales proceeds are less than the fair market value of the share on the date
of exercise of the stock option, the amount of
ordinary income recognized by the participant will not exceed the gain, if any,
realized on the sale. If the amount realized on a disqualifying disposition
exceeds the fair market value of the share on the date of exercise of the stock
option, that excess will be short-term or long-term capital gain, depending on
whether the holding period for the share exceeds one year.
For purposes of the alternative minimum
tax, the amount by which the fair market value of a share of stock acquired upon
exercise of an ISO exceeds the exercise price of the stock option generally will
be an adjustment included in the participants alternative minimum taxable
income for the year in which the stock option is exercised. If, however, there
is a disqualifying disposition of the share in the year in which the stock
option is exercised, there will be no adjustment for alternative minimum tax
purposes with respect to that share. In computing alternative minimum taxable
income, the tax basis of a share acquired upon exercise of an ISO is increased
by the amount of the adjustment taken into account with respect to that share
for alternative minimum tax purposes in the year the stock option is
exercised.
We are not allowed a tax deduction with
respect to the grant or exercise of an ISO or the disposition of a share
acquired upon exercise of an ISO after the required holding period. If there is
a disqualifying disposition of a share, however, we will generally be entitled
to a tax deduction equal to the taxable ordinary income realized by the participant, subject to the requirement of
reasonableness and the provisions of Section 162(m) of the Code, and provided
that either the employee includes that amount in income or we timely satisfy our
reporting requirements with respect to that amount.
Restricted
Stock Awards
Generally, the recipient of a restricted
stock award will recognize ordinary income at the time the stock is received
equal to the excess, if any, of the fair market value of the stock received over
any amount paid by the recipient in exchange for the stock. If, however, the
stock is not vested when it is received (for example, if the employee is
required to work for a period of time in order to have the right to sell the
stock), the recipient generally will not recognize income until the stock
becomes vested, at which time the recipient will recognize ordinary income equal
to the excess, if any, of the fair market value of the stock on the date it
becomes vested over any amount paid by the recipient in exchange for the stock.
A recipient may, however, file an election with the Internal Revenue Service,
within 30 days following his or her receipt of the stock award, to recognize
ordinary income, as of the date the recipient receives the award, equal to the excess, if any, of the fair market value
of the stock on the date the award is granted over any amount paid by the
recipient for the stock.
The recipients basis for the
determination of gain or loss upon the subsequent disposition of shares acquired
from a restricted stock award will be the amount paid for such shares plus any
ordinary income recognized either when the stock is received or when the stock
becomes vested.
Subject to the requirement of
reasonableness, the provisions of Section 162(m) of the Code and the
satisfaction of a tax reporting obligation, we will generally be entitled to a
tax deduction equal to the taxable ordinary income realized by the recipient of
the restricted stock award.
Restricted
Stock Unit Awards
Generally, the recipient of an RSU award
structured to comply with the requirements of Section 409A of the Code or an
exception to Section 409A of the Code will recognize ordinary income at the time
the stock is delivered equal to the excess, if any, of the fair market value of
the stock received over any amount paid by the recipient in exchange for the
stock. To comply with the requirements of Section 409A of the Code, the stock
subject to an RSU award may generally only be delivered upon one of the
following events: a fixed calendar date (or dates), separation from service,
death, disability or a change in control. If delivery occurs on another date,
unless the RSU award otherwise complies with or qualifies for an exception to
the requirements of Section 409A of the Code (including delivery upon achievement of a performance goal), in addition to the
tax treatment described above, the recipient will owe an additional 20% federal
tax and interest on any taxes owed.
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Table of
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Proposal No. Five: Approval of the
2017 Equity Incentive Plan |
The recipients basis for the
determination of gain or loss upon the subsequent disposition of shares acquired
from an RSU award will be the amount paid for such shares plus any ordinary
income recognized when the stock is delivered.
Subject to the requirement of
reasonableness, the provisions of Section 162(m) of the Code and the
satisfaction of a tax reporting obligation, we will generally be entitled to a
tax deduction equal to the taxable ordinary income realized by the recipient of
the RSU award.
Stock
Appreciation Rights
Generally, if a stock appreciation right
is granted with an exercise price equal to the fair market value of the
underlying stock on the grant date, the recipient will recognize ordinary income
equal to the fair market value of the stock or cash received upon such exercise.
Subject to the requirement of reasonableness, the
provisions of Section 162(m) of the Code, and the satisfaction of a tax
reporting obligation, we will generally be entitled to a tax deduction equal to
the taxable ordinary income realized by the recipient of the stock appreciation
right.
New Plan
Benefits
All awards under the 2017
Plan are
made in the discretion of the Plan Administrator, and no Awards have been
granted under the 2017 Plan subject to stockholder approval of this Proposal No.
Five. Therefore, the benefits and amounts that will be received or allocated
under the 2017 Plan are not determinable at this time. Our past equity grants to
our NEOs, and our current director compensation policy, are discussed
above.
THE BOARD OF DIRECTORS
RECOMMENDS A VOTE IN FAVOR OF PROPOSAL NO.
FIVE. |
Table of
Contents
Proposal No. Six:
Approval of Amendments to the Amended and Restated Certificate of
Incorporation, as Amended |
Overview
Our Board is requesting stockholder
approval of an amendment to our amended and restated certificate of
incorporation, as amended (the Charter), to (i) increase the total number of
authorized shares of common stock from 250,000,000 shares to 500,000,000 shares,
and (ii) make certain minor administrative changes, including to remove
references that no longer apply or do not apply and to align the provision
regarding the individuals who may call a special meeting of stockholders with
the provision in our Amended and Restated Bylaws (the Bylaws). On March 22,
2017, our Board adopted resolutions approving the
proposed certificate of amendment to our Charter (the Certificate of Amendment),
in substantially the form attached hereto as Appendix B. At that time, our Board
declared the amendments set forth in the Certificate of Amendment to be
advisable and in the best interests of BioMarin and our stockholders and is
accordingly submitting the Certificate of Amendment for approval by our
stockholders. If our stockholders approve this Proposal Six, we expect to file
the Certificate of Amendment with the Secretary of State of the State of
Delaware as soon as practicable following stockholder approval.
Increase in
Authorized Shares
The Certificate of Amendment would
increase the number of shares of common stock that BioMarin is authorized to
issue from 250,000,000 shares of common stock to 500,000,000 shares of common
stock, representing an increase of 250,000,000 shares of authorized common
stock, with a corresponding increase in the total authorized capital stock,
which includes common stock and preferred stock, from 251,000,000 shares
to 501,000,000 shares. We are not requesting any
increase to the authorized number of shares of preferred stock, which will
remain unchanged at 1,000,000 shares.
The following table describes the
allocation of our currently authorized common stock among issued, reserved and
unreserved shares as of March 17, 2017:
Category |
|
Number of Shares |
Authorized |
|
250,000,000 |
Less: Issued and outstanding |
|
173,287,047 |
Available for
issuance |
|
76,712,953 |
Less: Shares issuable upon
conversion of our 1.875% senior subordinated convertible notes due 2017
(the 2017 Notes)1 |
|
1,104,987 |
Less: Shares issuable upon conversion of our 0.75% senior
subordinated convertible notes due in 2018 (the 2018
Notes)2 |
|
3,982,775 |
Less: Shares issuable upon conversion of our 1.50% senior
subordinated convertible notes due in 2020 (the 2020 Notes and, together
with the 2017 Notes and the 2018 Notes, the Notes)3 |
|
3,982,913 |
Less: Shares issuable upon the exercise of options
outstanding, with a weighted average exercise price of $51.59 per
share |
|
8,444,341 |
Less: Shares issuable upon the vesting of RSU awards
outstanding |
|
2,095,711 |
Less: Shares reserved for future issuance under the 2006 Plan
(excluding outstanding awards) |
|
8,467,738 |
Less: Shares reserved for future issuance under the Amended
and Restated 2006 Employee Stock Purchase Plan |
|
755,218 |
Unissued, unreserved shares |
|
47,879,270 |
1 |
The 2017 Notes convert
at a rate of 49.1171 shares of our common stock per $1,000 principal
amount of 2017 Notes (equivalent to a conversion price of approximately
$20.36 per share of common stock). |
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Statement |
Table of
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Proposal No. Six:
Approval of Amendments to the Amended and Restated Certificate of
Incorporation, as Amended |
2 |
The 2018 Notes convert at a rate
of 10.6213 shares of our common stock per $1,000 principal amount of 2018
Notes (equivalent to a conversion price of approximately $94.15 per share
of common stock). |
3 |
The 2020 Notes convert at a rate
of 10.6213 shares of our common stock per $1,000 principal amount of 2018
Notes (equivalent to a conversion price of approximately $94.15 per share
of common stock). |
Subsequent to March 17, 2017, on March 22, 2017, we made our annual company-wide equity award grant for an aggregate
of 1,919,480 shares issuable under such awards. See page 71 for outstanding equity award and equity compensation plan
information following the annual equity award grant.
Reasons for
the Increase in Authorized Shares
Although, at present, our Board has no
immediate plans to issue the additional shares of common stock, it desires to
have the shares available to provide additional flexibility to use BioMarins
common stock for business and financial purposes in the future as well as to
have sufficient shares available to provide appropriate equity incentives for
our employees. The additional shares may be used for various purposes without
further stockholder approval. These purposes may include raising capital;
providing equity incentives to employees, officers, directors, consultants
and/or advisors; establishing strategic relationships with other companies;
expanding our business through the acquisition of other businesses, products or
technologies; stock splits and stock dividends; and other purposes. We will need
to raise substantial additional funding to, among other things, fund our
operations, conduct and/or complete clinical trials, build out our commercial
organization, make future milestone payments, repay the principal amount of, and
ongoing interest due on, the Notes, and satisfy any of our other current or
future obligations. The additional shares may be used for a financing if we have
an appropriate opportunity.
As of March 17, 2017, we had $772.5
million (undiscounted) principal amount of indebtedness, including $22.5 million
(undiscounted) of indebtedness under the 2017 Notes, $375.0 million
(undiscounted) of indebtedness under the 2018 Notes and $375.0 million
(undiscounted) principal amount of indebtedness under the 2020 Notes. If the
holders of the Notes do not convert their Notes prior to their respective
maturity dates, we will be required to repay the principal amount of all then
outstanding Notes plus accrued and unpaid interest. We may also be required to
repurchase the Notes for cash upon the occurrence of certain fundamental changes
involving us. If our capital resources are insufficient to satisfy our debt
service obligations, we may be required to raise substantial additional capital,
including potentially through the issuance of equity securities, and our failure
to do so and default on our obligations under the Notes would have a material
adverse effect on our business, financial condition and prospects. If this
Proposal Six is not approved by our stockholders, it is possible that our
financing alternatives, including in connection with satisfying our debt service obligations and continuing to grow our
commercial business and advance our product pipeline, may be limited by the lack
of sufficient unissued and unreserved authorized shares of common stock, and
stockholder value may be harmed, perhaps severely, by this limitation. In
addition, our success depends in part on our continued ability to attract,
retain and motivate highly qualified management and clinical and scientific
personnel, and if this Proposal Six is not approved by our stockholders, the
lack of unissued and unreserved authorized shares of common stock to provide
future equity incentive opportunities that the Compensation Committee deems
appropriate could adversely impact our ability to achieve these goals. In
summary, if our stockholders do not approve this Proposal Six, we may not be
able to access the capital markets, complete corporate collaborations or
partnerships, attract, retain and motivate employees and pursue other business
opportunities integral to our growth and success, all of which could severely
harm our business and our prospects.
Our Board believes that the proposed
increase in authorized common stock will make sufficient shares available to
provide the additional flexibility necessary to pursue our strategic objectives.
Over the past several years, this flexibility has allowed us to pursue a number
of financing transactions that were key to enabling our growth while at the same
time enabling us to continue to provide the employee equity incentives that we
deem necessary to attract and retain key employees. For example:
● |
In August 2016 we completed an
underwritten public offering of 7,500,000 shares of our common stock for
net proceeds of approximately $712.9 million to be used for general
corporate purposes, including clinical trials of our product candidates
and the expansion of our manufacturing capacity, particularly with respect
to our manufacturing capability for our gene therapy program. We may also use the proceeds to fund acquisitions of
businesses, technologies or product lines that complement our current
business. |
Table of
Contents
Proposal No. Six:
Approval of Amendments to the Amended and Restated Certificate of
Incorporation, as Amended |
● |
In January 2015 we completed an
underwritten public offering of 9,775,000 shares of our common stock for
net proceeds of approximately $772.3 million to be used for general
corporate purposes and to fund the acquisition of Prosensa Holding N.V.
and pay related fees and expenses. |
● |
In March 2014 we completed an
underwritten public offering of 1,500,000 shares of our common stock for
net proceeds of approximately $117.4 million used primarily to fund the
purchase of our corporate headquarters. |
● |
In October 2013 we completed an
underwritten public offering of the 2018 Notes and the 2020 Notes for net
proceeds of approximately $726.2 million to be used for general corporate
purposes. |
Unless our stockholders approve this
Proposal Six, we may not have sufficient unissued and unreserved authorized
shares of common stock to engage in similar transactions in the future and to
respond to compensatory needs by implementing new or revised equity compensation
plans or arrangements, all of which could severely harm our business and our
prospects.
Effects of
the Increase in Authorized Shares
The additional common stock proposed to be
authorized pursuant to the Certificate of Amendment would have rights identical
to the currently outstanding shares of our common stock. Approval of this
Proposal Six would not affect the rights of the holders of currently outstanding
shares of our common stock, except for effects incidental to increasing the
number of shares of our common stock outstanding if such additional authorized shares
are issued, such as dilution of any earnings per share and voting rights of
current holders of common stock. The additional shares of common stock
authorized by the approval of this Proposal Six and the filing of the
Certificate of Amendment could be issued by our Board without further vote of
our stockholders except as may be required in particular cases by our Charter,
applicable law, regulatory agencies or the rules of NASDAQ. Under our Charter,
stockholders do not have preemptive rights to subscribe for additional
securities that may be issued by us, which means that current stockholders do
not have a prior right thereunder to purchase any new issue of common stock in
order to maintain their proportionate ownership interests in
BioMarin.
The approval of this Proposal Six and the
filing of the Certificate of Amendment could, under certain circumstances, have
an anti-takeover effect. The additional shares of common stock that would become available for issuance if this Proposal Six
is adopted could also be used by us to oppose a hostile takeover attempt or to
delay or prevent changes in control or management. For example, without further
stockholder approval, the Board could adopt a poison pill which would, under
certain circumstances related to an acquisition of our securities that is not
approved by the Board, give certain holders the right to acquire additional
shares of our common stock at a low price, or the Board could strategically sell
shares of common stock in a private transaction to purchasers who would oppose a
takeover or favor the current Board. Although this Proposal Six to approve the
Certificate of Amendment has been prompted by business and financial
considerations and not by the threat of any hostile takeover attempt (nor is the
Board currently aware of any such attempts directed at us), and the Board does
not intend or view the proposed increase in the number of authorized shares of
our common stock as an anti-takeover measure, stockholders should nevertheless
be aware that approval of this Proposal Six could facilitate future efforts by
us to deter or prevent changes in control, including transactions in which our
stockholders might otherwise receive a premium for their shares over
then-current market prices.
Other
Administrative Amendments
The Certificate of Amendment would also
remove outdated references that no longer or do not apply and to align the
provision regarding the individuals who may call a special meeting of
stockholders with the provision in our Bylaws. The minor administrative
amendments proposed are as follows:
1. |
Article IV: Delete the language any
written consent of stockholders is solicited. We are proposing this
amendment because no action can be taken by the stockholders by written
consent in accordance with the terms of the
Charter. |
|
|
2. |
Article IV: Replace two
references to shareholders with references to stockholders. We are
proposing this amendment because, under Delaware law, holders of common
stock of a Delaware corporation are typically referred to as
stockholders. |
|
|
3. |
Article IV: Replace two
references to which with references to that and correct minor
typos. |
|
|
4. |
Article X: Delete the language
Following the date of the final prospectus in connection with the initial
public offering of the Corporations Common Stock pursuant
to |
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Statement |
Table of
Contents
Proposal No. Six:
Approval of Amendments to the Amended and Restated Certificate of
Incorporation, as Amended |
|
a firm commitment underwriting.
We are proposing this amendment because we completed our initial public
offering in 1999 and this qualification is no longer needed. |
|
5. |
Article X: Delete the reference
to the individuals that may call a special meeting of the stockholders and
instead refer to the provision set forth in the Bylaws. We are proposing
this amendment to align the Charter with an update to our Bylaws, which is
already in effect. The existing Charter states that the Chair of the Board
or a majority of the then-current directors may call a special meeting of
stockholders, in accordance with our Bylaws. Subsequent to the filing of
the Charter, the Board created the position of Lead Independent Director
to serve as a liaison between the Chief Executive Officer and the
Independent Directors, and included among the Lead Independent Directors
duties and responsibilities the ability to call a special meeting of stockholders. The Board did not take away the power to
call a special meeting of stockholders from anyone who currently held the
power, but rather additionally gave it to the Lead Independent Director,
and amended the Bylaws to reflect that power. The parallel provision in
the Charter has not yet been amended to reflect this new
position. |
None of the proposed administrative
amendments will substantively affect the rights of stockholders.
The above description of the amendments
set forth in the Certificate of Amendment is only a summary and is qualified in
its entirety by reference to the complete text of the Certificate of Amendment,
which is attached to this proxy statement as Appendix B. We urge you to read
Appendix B in its entirety before casting your vote.
Abandonment
Although we currently expect that, if this
Proposal Six is approved by our stockholders, we will file the Certificate of
Amendment with the Secretary of State of the State of Delaware as soon as
practicable following stockholder approval, notwithstanding approval of this
Proposal Six by our stockholders, the Board may, in its sole discretion, abandon
the Certificate of Amendment and determine not to
file the Certificate of Amendment with the Secretary of State of the State of
Delaware. If this Proposal Six is approved by our stockholders and the Board
determines to exercise such discretion, we will publicly disclose that fact and
the Boards reason or reasons for its determination.
THE BOARD
OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF PROPOSAL NO.
SIX. |
Table of
Contents
Stock
Ownership Information |
Security
Ownership of Certain Beneficial Owners and Management
The table below sets forth certain
information regarding the ownership of shares of our common stock as of March
17, 2017 (except as otherwise noted) by: (i) each current director and each
nominee for director; (ii) each of the NEOs; (iii) all of our executive officers
and directors as a group; and (iv) all those known by us to be beneficial owners
of more than five percent of our common stock. Except as otherwise noted, the
entities and individuals in this table have sole dispositive and voting power
with respect to all the shares of our common stock beneficially owned by them,
subject to community property laws, where applicable. The information with
respect to each entity and individual specified was supplied or confirmed by
such entity or individual or based upon statements filed with the SEC. Except as
otherwise indicated, the mailing address for each stockholder in the table below
is c/o BioMarin Pharmaceutical Inc., 105 Digital Drive, Novato, CA
94949.
Name of
Beneficial Owner |
|
Number of
Shares Beneficially Owned(1) |
|
|
Number
of Shares Subject To Options and Restricted Stock
Units(2) |
|
Total Number
of Shares Beneficially Owned(3) |
|
Percentage
of Total Shares Outstanding(4) |
Capital Research Global Investors(5) |
|
19,643,043 |
|
|
|
|
19,643,043 |
|
11.34% |
The
Vanguard Group(6) |
|
13,207,286 |
|
|
|
|
13,207,286 |
|
7.62% |
BlackRock, Inc.(7) |
|
10,610,120 |
|
|
|
|
10,610,120 |
|
6.12% |
Prudential Financial, Inc.(8) |
|
9,396,903 |
|
|
|
|
9,396,903 |
|
5.42% |
Sands Capital Management, LLC(9) |
|
9,380,802 |
|
|
|
|
9,380,802 |
|
5.41% |
Jennison Associates LLC(10) |
|
9,254,206 |
(10) |
|
|
|
9,254,206 |
|
5.34% |
FMR
LLC(11) |
|
9,149,505 |
|
|
|
|
9,149,505 |
|
5.28% |
Jean-Jacques Bienaimé |
|
236,135 |
(12) |
|
1,302,358 |
|
1,538,493 |
|
* |
Daniel Spiegelman |
|
10,550 |
|
|
110,345 |
|
120,895 |
|
* |
Jeff Ajer |
|
7,568 |
|
|
110,768 |
|
118,336 |
|
* |
Robert A. Baffi, Ph.D. |
|
118,803 |
(13) |
|
297,891 |
|
416,694 |
|
* |
Henry J. Fuchs, M.D. |
|
72,525 |
|
|
267,935 |
|
340,460 |
|
* |
Willard Dere, M.D. |
|
|
|
|
|
|
|
|
* |
Kathryn E. Falberg |
|
|
|
|
|
|
|
|
* |
Michael Grey |
|
26,250 |
|
|
34,400 |
|
60,650 |
|
* |
Elaine J. Heron, Ph.D. |
|
35,625 |
|
|
41,900 |
|
77,525 |
|
* |
V.
Bryan Lawlis, Ph.D. |
|
11,300 |
|
|
88,000 |
|
99,300 |
|
* |
Alan J. Lewis, Ph.D. |
|
17,500 |
|
|
34,400 |
|
51,900 |
|
* |
Richard A. Meier |
|
26,250 |
|
|
94,400 |
|
120,650 |
|
* |
David E.I.Pyott, M.D. (Hon.) |
|
700 |
|
|
2,034 |
|
2,734 |
|
* |
Dennis J. Slamon, M.D., Ph.D. |
|
6,325 |
|
|
16,283 |
|
22,608 |
|
* |
All
current executive officers and directors as a group (16 persons) |
|
616,534 |
|
|
2,634,688 |
|
3,251,222 |
|
1.85% |
* |
Represents less than 1% of
our common stock outstanding on March 17, 2017. |
(1) |
Represents the number of shares of
our common stock owned directly or indirectly by each entity and person,
and excludes shares underlying options and RSUs held by our directors and
officers, which are reported in the column titled Number of Shares
Subject To Options and Restricted Stock Units. |
(2) |
Represents shares of our common stock
subject to options that are or will become exercisable and RSUs that will
vest within 60 days of March 17, 2017. |
(3) |
Equals the sum of the number of
shares under the table columns titled Number of Shares Beneficially
Owned and Number of Shares Subject To Options and Restricted Stock
Units. |
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Statement |
Table of
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Stock Ownership
Information |
(4) |
The calculation of percentages is
based upon 173,287,047 shares of our common stock outstanding on March 17,
2017, plus for each of the individuals listed above, the number of shares
subject to options and RSUs reflected in the column under the heading
Number of Shares Subject To Options and Restricted Stock
Units. |
(5) |
This information is as of
December 31, 2016 and is based solely on information contained in the
Schedule 13G/A filed with the SEC on February 13, 2017 by Capital
Research Global Investors (CRGI), a division of Capital Research and
Management Company. CRGI, as a registered investment adviser under Section
203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3) or under the
laws of any state, may be deemed to beneficially own the indicated shares
and has sole dispositive and voting power over the indicated shares. The
address for CRGI is 333 South Hope St., Los Angeles, CA
90071. |
(6) |
This information is as of
December 31, 2016 and is based solely on information contained in the
Schedule 13G/A filed with the SEC on February 10, 2017 by The Vanguard
Group, Inc. (Vanguard). Vanguard, as a registered investment adviser under
Section 203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3) or
under the laws of any state, may be deemed to beneficially own the
indicated shares and has sole dispositive power over 13,037,906 shares,
shared dispositive power over 169,380 shares, sole voting power over
145,962 shares and shared voting power over 32,196 shares. Vanguard
reported its beneficial ownership on behalf of itself and the following:
Vanguard Fiduciary Trust Company and Vanguard Investments Australia, Ltd.,
each a wholly-owned subsidiary of Vanguard. The address for Vanguard is
100 Vanguard Blvd., Malvern, PA 19355. |
(7) |
This information is as of
December 31, 2016 and is based solely on information contained in the
Schedule 13G/A filed with the SEC on January 19, 2017 by BlackRock,
Inc. (BlackRock). BlackRock, as a parent holding company or control
person, may be deemed to beneficially own the indicated shares and has
sole dispositive power over 10,610,120 shares and sole voting power over
9,485,002 shares. BlackRock reported its beneficial ownership on behalf of
itself and the following: BlackRock (Luxembourg) S.A., BlackRock
(Netherlands) B.V., BlackRock (Singapore) Limited, BlackRock Advisors (UK)
Limited, BlackRock Advisors, LLC, BlackRock Asset Management Canada
Limited, BlackRock Asset Management Deutschland AG, BlackRock Asset
Management Ireland Limited, BlackRock Asset Management North Asia Limited,
BlackRock Asset Management Schweiz AG, BlackRock Capital Management,
BlackRock Financial Management, Inc., BlackRock Fund Advisors, BlackRock
Fund Managers Ltd, BlackRock Institutional Trust Company, N.A, BlackRock
International Limited, BlackRock Investment Management (Australia)
Limited, BlackRock Investment Management (UK) Ltd, BlackRock Investment
Management, LLC, BlackRock Japan Co Ltd and BlackRock Life Limited. The
address for BlackRock is 55 East 52nd St., New York, NY
10055. |
(8) |
This information is as of
December 31, 2016 and is based solely on information contained in the
Schedule 13G filed with the SEC on January 30, 2017 by Prudential
Financial, Inc. (Prudential). Prudential, as a registered investment
adviser under Section 203 of the Investment Advisers Act of 1940 (15
U.S.C. 80b-3) or under the laws of any state, may be deemed to
beneficially own the indicated shares and has sole dispositive power over
276,080 shares, shared dispositive power over 9,120,823 shares, sole
voting power over 276,080 shares and shared voting power over 6,126,202
shares. Prudential reported its beneficial ownership on behalf of itself
and the following: The Prudential Insurance Company of America, Prudential
Retirement Insurance and Annuity Company, Jennison Associates LLC, PGIM,
Inc. and Quantitative Management Associates LLC, each an indirect
subsidiary of Prudential. The address for Prudential is 751 Broad St.,
Newark, NJ 07102. |
(9) |
This information is as of
December 31, 2016 and is based solely on information contained in the
Schedule 13G/A filed with the SEC on February 14, 2017 by Sands Capital
Management, LLC (Sands). Sands, as a registered investment adviser under
Section 203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3) or
under the laws of any state, may be deemed to beneficially own the
indicated shares and has sole dispositive power over 9,380,802 shares and
sole voting power over 6,590,901 shares. The address for Sands is 1000
Wilson Blvd., Suite 3000, Arlington, VA 22209. |
(10) |
This information is as of
December 31, 2016 and is based solely on information contained in the
Schedule 13G filed with the SEC on February 2, 2017 by Jennison Associates
LLC (Jennison). Jennison, as a registered investment adviser under Section
203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3) or under the
laws of any state, may be deemed to beneficially own the indicated shares
and has sole dispositive power over 9,254,206 shares and sole voting power
over 6,259,585 shares. The address for Jennison is 466 Lexington Ave., New
York, NY 10017. Prudential indirectly owns 100% of the equity interests of
Jennison. As a result, Prudential may be deemed to have the power to
exercise or to direct the exercise of such voting and/or dispositive power
that Jennison may have with respect to the shares. Jennison does not file
jointly with Prudential; as such, shares reported on Jennisons Schedule
13G may be included in the shares reported on the Schedule 13G filed by
Prudential. |
(11) |
This information is as of
December 31, 2016 and is based solely on information contained in the
Schedule 13G/A filed with the SEC on February 14, 2017 by FMR LLC and
Abigail P. Johnson. FMR LLC, as a parent holding company or control
person, may be deemed to beneficially own the indicated shares and has
sole dispositive power over 9,149,505 shares and sole voting power over
1,085,782 shares. FMR reported its beneficial ownership on behalf of
itself and the following: FIAM LLC, Fidelity Institutional Asset
Management Trust Company, FMR Co., Inc. and Strategic Advisers, Inc. FMR
Co., Inc. beneficially owns 5% or greater of the outstanding shares of the
security class being reported on the |
Table of Contents
Stock Ownership
Information |
|
Schedule 13G/A. Abigail P. Johnson,
as a Director, the Chairman, and the Chief Executive Officer of FMR LLC,
may be deemed to beneficially own the indicated shares and has sole
dispositive power over 9,149,505 shares. Members of the Johnson family,
including Abigail P. Johnson, are the predominant owners, directly or
through trusts, of Series B voting common shares of FMR LLC, representing
49% of the voting power of FMR LLC. The Johnson family group and all other
Series B stockholders have entered into a stockholders voting agreement
under which all Series B voting common shares will be voted in accordance
with the majority vote of Series B voting common shares. Accordingly,
through their ownership of voting common shares and the execution of the
stockholders voting agreement, members of the Johnson family may be
deemed, under the Investment Company Act of 1940, to form a controlling
group with respect to FMR LLC. Neither FMR LLC nor Abigail P. Johnson has
the sole power to vote or direct the voting of the shares owned directly
by the various investment companies registered under the Investment
Company Act (the Fidelity Funds) advised by Fidelity Management &
Research Company, a wholly owned subsidiary of FMR LLC, which power
resides with the Fidelity Funds Boards of Trustees. Fidelity Management
& Research Company carries out the voting of the shares under written
guidelines established by the Fidelity Funds Boards of Trustees. The
address for FMR LLC is 245 Summer St., Boston, MA 02210. |
(12) |
Includes 182,801 shares held in a
trust of which Mr. Bienaimé is a trustee. |
(13) |
Includes 79,970 shares held in a
trust of which Dr. Baffi is a trustee. |
Director and Officer Stock Ownership
Guidelines
The Compensation Committee has approved
stock ownership guidelines for our directors, Chief Executive Officer and
Executive or Senior Vice Presidents, which have been approved by the Board.
Under these guidelines, executives are expected to use the shares of common
stock obtained on the exercise of stock options or vesting of RSUs received to
establish significant level of direct ownership in BioMarin. Newly appointed or
elected directors and newly appointed or hired officers have three years to
comply with their specific stock ownership guidelines.
The following table summarizes the
guidelines for our directors and NEOs as of December 31, 2016:
Name |
|
Stock Ownership Guidelines |
Independent
Directors(1) |
|
Lesser of 10,000 shares and unvested
RSUs or value of shares and unvested RSUs equal to 3 times cash retainer
amount (3x) |
|
Willard Dere, M.D. |
|
|
|
Kathryn E. Falberg |
|
|
|
Michael Grey |
|
|
|
Elaine J. Heron, Ph.D. |
|
|
|
V. Bryan Lawlis, Ph.D. |
|
|
|
Alan J. Lewis, Ph.D. |
|
|
|
Richard A. Meier |
|
|
|
David E.I. Pyott, M.D.
(Hon.) |
|
|
|
Dennis J. Slamon, M.D.,
Ph.D. |
|
|
|
|
Chief Executive
Officer |
|
Value of shares and unvested RSUs
equal to 3 times base salary (3x) |
|
Jean-Jacques Bienaimé |
|
|
|
|
NEOs (all are
Executive Vice Presidents) |
|
Value of shares and unvested RSUs
equal to 2 times base salary (2x) |
|
Jeff Ajer |
|
|
|
Robert A. Baffi, Ph.D. |
|
|
|
Henry J. Fuchs, M.D. |
|
|
|
Daniel Spiegelman |
|
|
(1) |
Willard Dere, Kathryn Falberg and
David Pyott joined the Board in 2016. Accordingly, Dr. Dere, Ms. Falberg
and Dr. Pyott are not included in the chart below regarding compliance
with director stock ownership guidelines since newly elected or appointed
directors have three years from the time they joined the Board to comply
with their specific stock ownership
guidelines. |
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Statement |
Table of Contents
Stock
Ownership Information |
The following charts summarize our
directors and NEOs compliance with the guidelines as of December 31,
2016:
DIRECTORS |
|
|
NAMED EXECUTIVE
OFFICERS |
|
Compliance with our stock ownership
guidelines is based on shares (including shares held in trusts for which the
individual is the trustee and in a deferral account and issuable to such
individual pursuant to our Nonqualified Deferred Compensation Plan) and unvested
service-based RSUs and unvested earned performance-based RSUs held by a director
or officer as of December 31, 2016, but it does not include unvested, unearned
performance-based RSUs or vested or unvested options. The value of stock owned
is calculated using the closing price of our common stock on December 31, 2016,
which was $82.84. All of our directors and NEOs were in compliance with our
stock ownership guidelines as of December 31, 2016.
The Compensation Committee believes these
stock ownership guidelines are an important tool in aligning the interests of
our executives with the long-term interests of our stockholders. Although the
guidelines are not mandatory, the Compensation Committee will consider
compliance with the guidelines in setting an officers compensation and the CGN
Committee will consider compliance with the guidelines when making decisions on
nominating directors for re-election. See the Compensation Discussion and Analysis
section of this Proxy Statement for more information regarding these
guidelines.
Table of Contents
Stock
Ownership Information |
Anti-Hedging and Anti-Pledging
Policy
The Board has approved an anti-hedging and
anti-pledging policy for our directors and executive officers. Under this
policy, all of our executive officers and directors are prohibited from engaging
in short-sales, transactions in put or call options, hedging transactions or
other inherently speculative transactions in BioMarin stock or engaging in
excessive margin and other pledging activities.
Section 16(a) Beneficial Ownership
Reporting Compliance
Section 16(a) of the Exchange Act requires
our directors and executive officers and persons who beneficially own more than
10% of a registered class of our equity securities to file reports of ownership
and reports of changes in the ownership with the SEC. Executive officers,
directors and greater than 10% stockholders are required by the SEC to furnish
us with copies of all Section 16(a) filings they make.
To the best of our knowledge and based
solely on a review of the copies of such reports furnished to us or written
representation that no other reports were required, during the fiscal year ended
December 31, 2016, all Section 16(a) filing requirements applicable to our
officers, directors and greater than ten percent beneficial owners were complied
with, except for the following:
● |
one report, covering one transaction
effected on May 6, 2016 relating to the forfeiture of stock, was filed
late on behalf of Mr. Ajer. |
Equity Compensation Plan
Information
The following table provides certain
information with respect to all of BioMarins equity compensation plans as of
December 31, 2016.
Plan Category |
Number
of securities to be issued upon exercise of outstanding
options, warrants and rights(a) |
|
|
Weighted average exercise price of outstanding
options, warrants and rights(1) ($)(b) |
|
Number
of securities remaining available for future issuance under
equity compensation plans (excluding securities reflected in
column (a))(c) |
|
Equity compensation plans approved by stockholders |
11,203,362 |
(2) |
|
50.93 |
|
9,080,078 |
(4) |
Equity compensation plans not approved by
stockholders |
275,173 |
(3) |
|
59.83 |
|
|
|
Total |
11,478,535 |
|
|
51.13 |
|
9,080,078 |
|
(1) |
The weighted average exercise
price excludes RSU awards, which have no exercise price. |
(2) |
Amount includes options to
purchase shares, service-based RSUs and performance- and market-based RSUs
issued under the 2006 Plan and 1997 Stock Plan, respectively, outstanding
as of December 31, 2016. Amount does not include any shares of common
stock issuable under our 2006 Employee Stock Purchase Plan (the ESPP). For
descriptions of the 2006 Plan, the 1997 Stock Plan and the ESPP, see Note
16 to our financial statements for the year ended December 31, 2016,
included in the Companys Annual Report on Form 10-K for the year ended
December 31, 2016, as filed with the SEC on February 27,
2017. |
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Statement |
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Stock
Ownership Information |
(3) |
Amount includes options to
purchase shares, service-based RSUs and performance- and market-based RSUs
issued under the BioMarin Pharmaceutical Inc. 2012 Inducement Plan (the
2012 Inducement Plan) and the BioMarin Pharmaceutical Inc. 2014 Inducement
Plan (the 2014 Inducement Plan), which were not approved by the Companys
stockholders in reliance on NASDAQ Marketplace Rule 5635(c)(4),
outstanding as of December 31, 2016. The 2012 Inducement Plan expired on
May 31, 2013 and the 2014 Inducement Plan expired on June 9, 2015. For
descriptions of the 2012 Inducement Plan and the 2014 Inducement Plan, see
Note 16 to our financial statements for the year ended December 31, 2015,
included in the Companys Annual Report on Form 10-K for the year ended
December 31, 2015, as filed with the SEC on February 29,
2016. |
(4) |
Amount reflects reduction of
securities available for issuance pursuant to the 2006 Plan, such that
each service-based RSU and performance- and market-based RSU granted on or
after May 12, 2010 but prior to May 15, 2013 reduces the shares available
for issuance under the 2006 Plan by 1.62 shares, and each service-based
RSU and performance- and market-based RSU granted on or after May 15, 2013
reduces the shares available for issuance under the 2006 Plan by 1.92
shares. Furthermore, amount includes 755,218 shares available for future
issuance under the ESPP, including an estimated 246,000 shares subject to
purchase during the current ESPP offering period that commenced November
1, 2016 and ends April 30, 2017. The Company issues shares under the ESPP
once every six months based on employee elections in the preceding six
months. Pursuant to the terms of the ESPP, the number of shares to be
issued and the price per share is not determined until immediately before
the date of issuance. |
Table of Contents
Questions and Answers about these Proxy
Materials and Voting
Why did I receive a one-page notice in the
mail regarding the Internet availability of proxy materials instead of a full
set of proxy materials?
Pursuant to rules adopted by the SEC, we
have elected to provide access to our proxy materials over the Internet.
Accordingly, we are sending an Important Notice Regarding the Availability of
Proxy Materials (the Proxy Availability Notice) to our stockholders of record.
All stockholders will have the ability to access the proxy materials on the
website referred to in the Proxy Availability Notice free of charge or request
to receive a printed set of the proxy materials for the Annual Meeting.
Instructions on how to access the proxy materials over the Internet or to
request a printed copy may be found in the Proxy Availability Notice.
We intend to mail the Proxy Availability
Notice on or about April 25, 2017 to all stockholders of record entitled to
vote at the Annual Meeting. We expect that this Proxy Statement and the other
proxy materials will be available to stockholders on or about April 25,
2017.
What does it mean if I receive more than
one Proxy Availability Notice?
If you receive more than one Proxy
Availability Notice, your shares may be registered in more than one name or in
different accounts. Please follow the voting instructions on each Proxy
Availability Notice to ensure that all of your shares are voted.
How do I attend the Annual
Meeting?
The Annual Meeting will be held on
Tuesday, June 6, 2017 at 9:00 a.m. (Pacific Daylight Time), at the Companys
offices in the Seminar Room, 770 Lindaro Street, San Rafael, CA 94901. You may
contact Investor Relations at IR@bmrn.com to obtain directions to
the Annual Meeting. Information on how to vote in person at the Annual Meeting
is discussed below. If you plan to attend the Annual Meeting, please note that
attendance will be limited to stockholders as of April 10, 2017, the Record
Date. Each stockholder may be asked to present valid photo identification, such
as a drivers license or passport. Stockholders holding stock in brokerage
accounts or by a bank or other nominee may be required to show a brokerage
statement or account statement reflecting stock ownership as of the Record Date.
Cameras, recording devices, and other electronic devices will not be permitted
at the Annual Meeting.
Who can vote at the Annual
Meeting?
Only stockholders of record at the close
of business on the Record Date will be entitled to vote at the Annual Meeting.
On the Record Date, there were 173,352,133 shares of common stock outstanding and
entitled to vote.
Stockholder of Record: Shares Registered in Your
Name
If on the Record Date your shares were
registered directly in your name with BioMarins transfer agent, Computershare
Inc., then you are a stockholder of record. As a stockholder of record, you may
vote in person at the Annual Meeting or vote by proxy. Whether or not you plan
to attend the Annual Meeting, we urge you to vote by proxy over the telephone,
or on the Internet as instructed below, or complete, date, sign and return the
proxy card mailed to you to ensure your vote is counted.
Beneficial Owner: Shares Registered in the Name
of a Broker, Bank or Other Nominee
If on the Record Date your shares were
held, not in your name, but rather in an account at a brokerage firm, bank,
dealer or other similar organization, then you are the beneficial owner of
shares held in street name and the Proxy Availability Notice is being
forwarded to you by that organization. The organization holding your account is
considered to be the stockholder of record for purposes of voting at the Annual
Meeting. As a beneficial owner, you have the right to direct your broker, bank
or other nominee regarding how to vote the shares in your account. You are also
invited to attend the Annual Meeting. However, since you are not the stockholder
of record, you may not vote your shares in person at the Annual Meeting unless
you request and obtain a valid proxy from your broker, bank or other
nominee.
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What am I voting on?
There are six matters scheduled for a
vote:
1. |
To elect the nine nominees for
director to serve until the next Annual Meeting and until their successors
are duly elected and qualified; |
|
2. |
To ratify the selection of KPMG
LLP as our independent registered public accounting firm for the fiscal
year ending December 31, 2017; |
|
3. |
To approve, on an advisory basis,
the frequency of the stockholders advisory approval of the compensation
of the Companys NEOs as disclosed in this Proxy Statement; |
|
4. |
To approve, on an advisory basis,
the compensation of the Companys NEOs as disclosed in this Proxy
Statement; |
|
5. |
To approve the 2017 Equity
Incentive Plan; and |
|
6. |
To approve amendments to
BioMarins Amended and Restated Certificate of Incorporation, as amended,
to (i) increase the total number of authorized shares of common stock from
250,000,000 shares to 500,000,000 shares, and (ii) make certain minor
administrative changes. |
What if another matter is properly brought
before the Annual Meeting?
The Board knows of no other matters that
will be presented for consideration at the Annual Meeting. If any other matters
are properly brought before the Annual Meeting, the persons named in the
accompanying proxy will vote on those matters in accordance with their best
judgment.
What is the Boards voting
recommendation?
The Board recommends that you vote your
shares:
● |
For the election of all nine
nominees for director; |
● |
For the ratification of the
selection of KPMG LLP as our independent registered public accounting firm
for BioMarin for its fiscal year ending December 31,
2017; |
● |
For the approval, on an advisory
basis, of the frequency of the stockholders advisory approval of the
compensation of the Companys NEOs as disclosed in this Proxy
Statement; |
● |
For the approval, on an advisory
basis, of the compensation of the Companys NEOs as disclosed in this
Proxy Statement; |
● |
For the approval of the 2017
Equity Incentive Plan; and |
● |
For the approval of the amendments
to BioMarins Amended and Restated Certificate of Incorporation, as
amended, to (i) increase the total number of authorized shares of common
stock from 250,000,000 shares to 500,000,000 shares, and (ii) make certain
minor administrative changes. |
How do I vote?
With regard to the election of directors,
you may vote For all the nominees to the Board or you may Withhold your vote
for all the nominees or any individual nominee you specify. With regard to the
advisory vote on the frequency of advisory votes on executive compensation, you
may vote for every 1 Year, 2 Years, 3 Years or abstain from voting. With
regard to each of the other matters to be voted on, you may vote For or
Against or abstain from voting.
The procedures for voting depend on
whether your shares are registered in your name or are held by a bank, broker or
other nominee:
Stockholder of Record: Shares Registered in Your
Name
If you are a stockholder of record, you
may vote in person at the Annual Meeting, vote by proxy over the telephone, vote
by proxy through the Internet, or vote by proxy using a proxy card that you may
request or that we may elect to deliver at a later time. Whether or not you plan
to attend the Annual Meeting, we urge you to vote by proxy to ensure your vote
is counted. You may still attend the Annual Meeting and vote in person even if
you have already voted by proxy.
● |
To vote over the telephone, dial
toll-free 1-800-690-6903 using a touch-tone phone and follow the recorded
instructions. You will be asked to provide the company number and control
number from the Proxy Availability Notice. Your vote must be received by
11:59 p.m., Eastern Daylight Time on June 5, 2017 to be
counted. |
● |
To vote through the Internet, go to
http://www.proxyvote.com to complete an electronic proxy card. You will be
asked to provide the company number and control number from the Proxy
Availability Notice. Your vote must be received by 11:59 p.m., Eastern
Daylight Time, on June 5, 2017 to be
counted. |
Table of Contents
● |
To vote using the proxy card, simply
complete, sign and date the proxy card that may be delivered to you and
return it promptly in the envelope provided. If you return your signed
proxy card to us and we receive it before the Annual Meeting, we will vote
your shares as you direct. |
● |
To vote in person, come to the
Annual Meeting and we will give you a ballot when you
arrive. |
Beneficial Owner: Shares Registered in the Name
of Broker, Bank or Other Nominee
If you are a beneficial owner of shares
registered in the name of your broker, bank, or other nominee, you should have
received a Proxy Availability Notice containing voting instructions from
that organization rather than from
BioMarin. Simply follow the voting instructions in the Proxy Availability Notice
to ensure that your vote is counted. To vote in person at the Annual Meeting,
you must obtain a valid proxy from your broker, bank or other nominee. Follow
the instructions from your broker, bank or other nominee included with these
proxy materials, or contact your broker, bank or other nominee to request a
proxy form.
Internet proxy voting may be
provided to allow you to vote your shares online, with procedures designed
to ensure the authenticity and correctness of your proxy vote
instructions. However, please be aware that you must bear any costs
associated with your Internet access, such as usage charges from Internet
access providers and telephone companies. |
How many votes do I have?
On each matter to be voted upon, you have
one vote for each share of common stock you own as of the Record
Date.
What if I return a proxy card or otherwise
vote but do not make specific choices?
If you return a signed and dated proxy
card or otherwise vote without marking voting selections, your shares will be
voted, as applicable, For the election of all nine nominees for director,
For the ratification of KPMG as the Companys independent registered public
accounting firm, for 1 Year as the preferred frequency of the stockholder
advisory votes on the compensation of the NEOs, For the advisory approval of
the compensation of the NEOs, For the approval of the 2017 Equity Incentive
Plan and For the approval of the amendments to our Amended and Restated
Certificate of Incorporation, as amended. If any other matter is properly
presented at the Annual Meeting, your proxy holder (one of the individuals named
on your proxy card) will vote your shares using his or her best
judgment.
Will my vote be kept
confidential?
Proxies, ballots and voting tabulations
are handled on a confidential basis to protect your voting privacy. This
information will not be disclosed, except as required by law.
Who is paying for this proxy
solicitation?
The accompanying proxy is solicited on
behalf of the Board for use at the Annual Meeting. Accordingly, the Company will
pay for the entire cost of soliciting proxies. In addition to these proxy
materials, our directors and employees and Morrow Sodali LLC may also solicit
proxies in person, by telephone, or by other means of communication. Directors
and employees of the Company will not be paid any additional compensation for
soliciting proxies, but Morrow Sodali LLC will be paid its customary fee of
approximately $7,500 plus out-of-pocket expenses if it solicits proxies. We may
also reimburse brokerage firms, banks and other nominees for the cost of
forwarding proxy materials to beneficial owners.
Can I change my vote after submitting my
proxy?
Yes. You can revoke your proxy at any time
before the final vote at the Annual Meeting. If you are the record holder of
your shares, you may revoke your proxy in any one of the following
ways:
● |
You may submit another properly
completed proxy card with a later date. |
● |
You may grant a subsequent proxy by
telephone or through the Internet. |
● |
You may send a timely written notice
that you are revoking your proxy to the Companys Secretary at BioMarin
Pharmaceutical Inc., Attention: G. Eric Davis, 105 Digital Drive, Novato,
CA 94949. Such notice will be considered timely if it is received at the
indicated address by close of business on Monday, June 5, 2017.
|
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● |
You may attend the Annual Meeting
and vote in person. Simply attending the Annual Meeting will not, by
itself, revoke your proxy. |
Your most current proxy card or telephone
or Internet proxy is the one that is counted, so long as it is provided within
the applicable deadline. If your shares are held by your broker, banker or other
nominee, you should follow the instructions provided by your broker, bank or
other nominee.
When are stockholder proposals for
inclusion in our proxy statement for next years Annual Meeting due?
Stockholders wishing to present proposals
for inclusion in our proxy statement for the 2018 Annual Meeting pursuant to
Rule 14a-8 of the Exchange Act must submit their proposals so that they are
received by us at our principal executive offices no later than December 26,
2017. However, if our 2018 Annual Meeting is not held between May 7, 2018 and
July 6, 2018, then the deadline will be a reasonable time prior to the time that
we begin to print and mail our proxy materials. Proposals for inclusion in our
proxy statement for the 2018 Annual Meeting should be sent to the Companys
Secretary at BioMarin Pharmaceutical Inc., Attention: G. Eric Davis, Executive
Vice President, General Counsel and Secretary, 105 Digital Drive, Novato, CA
94949.
When are other proposals and stockholder
nominations for directors for next years Annual Meeting due?
With respect to proposals and nominations
other than those to be included in our proxy statement pursuant to Rule 14a-8 of
the Exchange Act, our Bylaws provide that stockholders who wish to nominate a
director or propose other business to be brought before the stockholders at the
Annual Meeting must notify our Secretary by a written notice, which notice must
be received at our principal executive offices not less than 90 days nor more
than 120 days prior to the anniversary date of the immediately preceding years
Annual Meeting of stockholders.
For the 2018 Annual Meeting, stockholders
wishing to present nominations for director or proposals for consideration under
these provisions of our Bylaws must submit their nominations or proposals so
that they are received at our principal executive offices not earlier than
February 6, 2018 and not later than March 8, 2018 in order to be considered. In
the event that the 2018 Annual Meeting is to be held on a date that is not
within 25 days before or 60 days after June 6, 2018, then a stockholders notice
must be received by the Secretary no later than the close of business on the
10th day following the day on which notice of the date of the 2018 Annual
Meeting was mailed or the day we make a public announcement of the date of the
2018 Annual Meeting, whichever first occurs.
In addition, with respect to nominations
for directors, if the number of directors to be elected at the 2018 Annual
Meeting is increased effective at the 2018 Annual Meeting and there is no public
announcement by us naming the nominees for the additional directorships at least
100 days prior to June 6, 2018, a stockholders notice will also be considered
timely, but only with respect to nominees for the additional directorships, if
it is delivered to our Secretary at our principal executive offices not later
than the close of business on the 10th day following the day on which such
public announcement is first made by us.
Nominations or proposals should be sent in
writing to the Companys Secretary at BioMarin Pharmaceutical Inc., Attention:
G. Eric Davis, 105 Digital Drive, Novato, CA 94949. A stockholders notice to
nominate a director or bring any other business before the 2016 Annual Meeting
or the 2017 Annual Meeting must set forth certain information, which is
specified in our Bylaws. A complete copy of our Bylaws may be found in the
Corporate Governance section of the Investors section of our website at
www.bmrn.com. Information on our website is NOT incorporated by reference in this
Proxy Statement.
How can I recommend a director nominee for
consideration by the CGN Committee?
In order for a stockholder to have a
candidate considered by the CGN Committee, a stockholder should submit a written
recommendation that includes: (i) the name and record address of the stockholder
(and beneficial owner, if any, on whose behalf the nomination is made) and
evidence of the stockholders and beneficial owners ownership of our stock,
including the number of shares owned and the length of time of ownership; (ii) a
description of any agreement, arrangement or understanding with respect to the
nomination between or among such stockholder and/or such beneficial owner and
affiliates
Table of Contents
or others acting together; (iii) a
description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, warrants, convertible
securities, stock appreciation or similar rights, hedging transactions, and
borrowed or loaned shares) that has been entered into as of the date of the
stockholders notice by, or on behalf of, such stockholder and/or such
beneficial owners; (iv) a representation that the stockholder and/or any
beneficial owner intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice; (v) whether the stockholder or any
beneficial owner intends or is part of a group that intends to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of our
outstanding capital stock required to elect the nominee and/or otherwise to
solicit proxies from stockholders in support of such nomination; and (vi) any
other information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitation of proxies for election of directors pursuant to
Section 14 of the Exchange Act. With respect to
each person whom the stockholder proposes to nominate for election as a
director, the stockholder must include (1) the name, age, business address and
residence address of the director candidate, (2) the candidates resume or a
listing of his or her qualifications to be a director (including principal
occupation or employment), (3) the class or series and number of shares of stock
which are owned beneficially or of record by the candidate, and (4) any other
information relating to the candidate that would be required to be disclosed in
a proxy statement or other filings required to be made in connection with
solicitation of proxies for election of directors pursuant to Section 14 of the
Exchange Act. The notice must also be accompanied by a written consent of each
proposed nominee to being named as a nominee if selected by the CGN Committee
and nominated by the Board. Stockholder recommendations should be addressed to
the Corporate Governance and Nominating Committee at 105 Digital Drive, Novato,
CA 94949, c/o G. Eric Davis, Executive Vice President, General Counsel and
Secretary.
How are
votes counted?
Votes will be counted by the inspector of
election appointed for the Annual Meeting, who will separately count, For,
Withhold and broker non-votes for the proposal to elect directors; for 1
Year, 2 Years, 3 Years, Abstain and broker non-votes for the proposal
regarding the advisory vote on the frequency of advisory votes on executive
compensation; and with respect to other proposals, votes For, Against,
Abstain and broker non-votes, if applicable.
What are
broker non-votes?
Broker non-votes occur when a beneficial
owner of shares held in street name does not give instructions to the broker,
bank or other nominee holding the shares as to how to vote. Generally, if shares
are held in street name, the beneficial owner of the shares is entitled to give
voting instructions to the broker, bank or other nominee holding the shares. If
the beneficial owner does not provide voting instructions, the broker, bank or
other nominee can still vote the shares with respect to matters that are
considered to be routine, but cannot vote the shares with respect to
non-routine matters. Under the rules and interpretations of the New York Stock
Exchange (the NYSE), which generally apply to all brokers, bank or other
nominees, on voting matters characterized by the
NYSE as routine, NYSE member firms have the discretionary authority to vote
shares for which their customers do not provide voting instructions. On
non-routine proposals, such uninstructed shares may not be voted by member
firms. Only Proposal No. TwoRatification of the selection of our independent
registered public accounting firm and Proposal No. SixApproval of amendments to
our Amended and Restated Certificate of Incorporation, as amended, are
considered routine matters for this purpose, and brokers, banks or other
nominees will generally have discretionary voting power with respect to such
proposals.
What is the
effect of abstentions and broker non-votes?
Abstentions: Under Delaware law (under which BioMarin is incorporated), abstentions
are counted as shares present and entitled to vote at the Annual Meeting, and
therefore counted as present for the purpose of determining whether a quorum is
present, but they are not counted as shares cast. Our Amended and Restated
Bylaws provide that a stockholder action (other than the election of directors
and unless otherwise required by applicable laws, regulations or stock exchange
rules) shall be decided by the vote of the
holders of a majority of the total number of votes of the Companys capital
stock cast on the matter. Therefore, abstentions will have no effect on Proposal
No. TwoRatification of the selection of KPMG as our independent registered
public accounting firm, Proposal No. ThreeAdvisory vote on the frequency of
advisory votes on executive compensation, Proposal No. FourAdvisory vote on
executive compensation, or Proposal No. FiveApproval of the
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2017 Equity Incentive Plan. Under Delaware
law, amendments to a companys certificate of incorporation must be approved by
a majority of the outstanding capital stock entitled to vote thereon. Therefore,
abstentions will have the same effect as an Against vote on Proposal No.
SixApproval of amendments to our Amended and Restated Certificate of
Incorporation, as amended.
Broker Non-Votes: The non-routine matters on the agenda for the Annual
Meeting for which brokers, banks and other nominees will not be able to vote
uninstructed shares include Proposal No. OneElection of directors, Proposal No.
ThreeAdvisory vote on the frequency of advisory votes on executive
compensation, Proposal No. FourAdvisory vote on executive compensation and
Proposal No. FiveApproval of the 2017 Equity Incentive Plan.
Broker non-votes will be counted as
present at the Annual Meeting for the purpose of determining whether a quorum is
present at the Annual Meeting. However, because broker non-votes are not
considered under Delaware law to be votes cast,
they will have no effect on the outcome of the vote on: Proposal No.
OneElection of directors, Proposal No. ThreeAdvisory vote on the frequency of
advisory votes on executive compensation, Proposal No. FourAdvisory vote on
executive compensation or Proposal No. FiveApproval of the 2017 Equity
Incentive Plan. As a result, if you hold your shares in street name and you do
not instruct your broker, bank or other nominee how to vote your shares on these
proposals, no votes will be cast on your behalf on these proposals. Therefore, it is critical that you indicate your vote on these
proposals if you want your vote to be counted. Proposal No. TwoRatification of the selection of KPMG as our independent
registered public accounting firm and Proposal No. SixApproval of amendments to
our Amended and Restated Certificate of Incorporation, as amended, are
considered routine matters. Therefore, your broker, bank or other nominee will
be able to vote on these proposals even if it does not receive instructions from
you, so long as it holds your shares in its name.
How many
votes are needed to approve each proposal?
Proposal |
|
Vote Required |
|
Broker Discretionary Voting
Allowed? |
No. One. Election of Directors |
|
Plurality |
|
No |
No. Two. Ratification of Independent Registered Public
Accounting Firm |
|
Majority Cast |
|
Yes |
No. Three. Advisory Vote on the Frequency of Advisory Votes
on Executive Compensation |
|
Majority Cast |
|
No |
No. Four. Advisory Vote on Executive Compensation |
|
Majority Cast |
|
No |
No. Five. Approval of 2017 Equity Incentive Plan |
|
Majority Cast |
|
No |
No. Six. Approval of Amendments to Amended and Restated
Certificate of Incorporation, as amended |
|
Majority Outstanding |
|
Yes |
A Plurality, with regard to the election
of directors, means that the nine nominees who receive the most For votes cast
by the holders of shares either present in person or represented by proxy and
entitled to vote will be elected to our Board. A Majority Cast, with regard to
the ratification of our independent registered public accounting firm, the
advisory vote on the frequency of advisory votes on executive compensation, the
advisory vote on executive compensation, and the approval of the 2017 Equity
Incentive Plan, means that a majority of the votes cast on the proposal must be
voted For the proposal. A Majority Outstanding, with regard to approval of
the amendments to our Amended and Restated Certificate of Incorporation, as
amended, means that a majority of our shares of capital stock outstanding on the
Record Date and entitled to vote on the matter, whether or not present or
represented by proxy at the Annual Meeting, must be voted For the proposal.
Accordingly:
● |
Proposal No. One: For the election
of directors, the nine nominees receiving the most For votes cast by the
holders of shares present in person or represented by proxy and entitled
to vote on Proposal No. One will be elected. Only votes For or
Withheld will affect the outcome. Broker non-votes will have no effect.
Pursuant to our Corporate Governance Principles, any nominee for director
who receives a greater number of votes withheld from his or her election
than votes for his or her election in an uncontested election at a
stockholders meeting should promptly tender his or her resignation to the
Chair the Board following certification of the stockholder
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● |
Proposal No. Two: To be approved, a
majority of the total votes cast on Proposal No. Two must be voted For
the ratification of the selection of KPMG LLP as our independent
registered public accounting firm for the fiscal year ending December 31,
2017. Abstentions and broker non-votes will not be considered votes cast
on Proposal No. Two and will have no effect; however, the ratification of
KPMG is a matter on which a broker, bank or other nominee has
discretionary voting authority, and thus, we do not expect any broker
non-votes with respect to Proposal No. Two. |
● |
Proposal No. Three: The option among
the choices of frequencies that receives a majority of the total votes
cast on Proposal No. Three will be deemed to be the frequency preferred by
the stockholders. Abstentions and broker non-votes will not be considered
votes cast on Proposal No. Three and will have no effect. |
● |
Proposal No. Four: To be approved, a
majority of the total votes cast on Proposal No. Two must be voted For
the approval of the compensation of the Companys NEOs. Abstentions and broker non-votes will not be considered votes
cast on Proposal No. Four and will have no effect. |
● |
Proposal No. Five: To be approved, a
majority of the total votes cast on Proposal No. Five must be voted For
the approval of the 2017 Plan. Abstentions and broker non-votes will not
be considered votes cast on Proposal No. Five and will have no
effect. |
● |
Proposal No. Six: To be approved, a
majority of our shares of capital stock outstanding on the Record Date and
entitled to vote on the matter must be voted For the amendments to our
Amended and Restated Certificate of Incorporation, as amended. Abstentions
and broker non-votes will have the same effect as Against votes;
however, the approval of the amendments to our Amended and Restated
Certificate of Incorporation, as amended, is a matter on which a broker,
bank or other nominee has discretionary voting authority, and thus, we do
not expect any broker non-votes with respect to Proposal No.
Six. |
What is the
quorum requirement?
A quorum of stockholders is necessary to
hold a valid stockholder meeting. A quorum will be present if stockholders
holding at least a majority of the outstanding shares entitled to vote are
present in person or represented by proxy at the Annual Meeting. On the Record
Date, there were 173,352,133 shares outstanding and entitled to vote. Thus, the holders
of at least 86,676,067 shares must be present in person or represented by proxy at the
Annual Meeting to have a quorum.
Your shares will be counted towards the
quorum only if you submit a valid proxy by mail, over the phone or through the
Internet (or one is submitted on your behalf by your broker, bank or other
nominee) or if you attend the Annual Meeting.
Abstentions and broker non-votes will be
counted towards the quorum requirement. If there is no quorum, then the holders
entitled to vote thereat, present at the Annual Meeting in person or represented
by proxy, by a majority of the votes cast, may adjourn the meeting to another
date. At any adjourned Annual Meeting at which a quorum is present, any business
may be transacted that might have been transacted at the Annual Meeting as
originally notified. If the adjournment is for more than 30 days, or if after
that adjournment a new record date is fixed for the adjourned Annual Meeting, a
notice of the adjourned Annual Meeting shall be given to each stockholder of
record entitled to vote at the adjourned Annual Meeting.
How can I
find out the results of the voting at the Annual Meeting?
Preliminary voting results will be
announced at the Annual Meeting. In addition, final voting results will be
published in a current report on Form 8-K that we expect to file with the SEC
within four business days after the Annual Meeting. If final voting results are
not available to us in time to file a Form 8-K with the SEC within four business
days after the Annual Meeting, we intend to file a Form 8-K to publish the
preliminary results within four business days after the Annual Meeting and file
an amended Form 8-K to publish the final results within four business days after
the final results are known to us.
If you have any questions or need
assistance in voting your shares, please call the following firm, which is
assisting the Company in the solicitation of proxies:
Morrow Sodali LLC
470 West
Avenue
Stamford, CT 06902
1-800-662-5200
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Householding of Proxy
Materials
The SEC has adopted rules that permit
companies and intermediaries (e.g., brokers) to satisfy the delivery
requirements for the Proxy Availability Notice or other Annual Meeting materials
with respect to two or more stockholders sharing the same address by delivering
a single Proxy Availability Notice or other Annual Meeting Materials addressed
to those stockholders. This process, which is commonly referred to as
householding, potentially provides extra convenience for stockholders and cost
savings for companies. Stockholders who participate in householding will
continue to be able to access and receive separate proxy cards.
This year, a number of brokers with
account holders who are our stockholders will be householding our proxy
materials. A Proxy Availability Notice or proxy materials will be delivered in
one single envelope to multiple stockholders sharing an address unless contrary
instructions have been received from one or more of the affected stockholders.
Once you have received notice from your broker
that they will be householding communications to your address, householding will
continue until you are notified otherwise or until you revoke your consent. If,
at any time, you no longer wish to participate in householding and would prefer
to receive a separate Proxy Availability Notice or proxy materials, please
notify your broker or contact Broadridge Financial Solutions, Inc. in writing
at: Attn: Householding Department, 51 Mercedes Way, Edgewood, NY 11717; or by
telephone: (866) 540-7095. Stockholders who currently receive multiple copies of
the Proxy Availability Notice or proxy materials at their address and would like
to request householding of their communications should contact their broker. In
addition, we will promptly deliver, upon written or oral request to the address
or telephone number above, a separate copy of the Proxy Availability Notice or
proxy materials to a stockholder at a shared address to which a single copy of
the documents was delivered.
Other
Matters
The Board knows of no other matters that
will be presented for consideration at the Annual Meeting. If any other matters
are properly brought before the Annual Meeting, it is the intention of the
persons named in the accompanying proxy to vote on such matters in accordance
with their best judgment.
Special Note Regarding
Forward-Looking Statements
This Proxy Statement and other materials we are sending you or that are available on our website in connection with the Annual Meeting (the Other Materials) contain
forward-looking statements as defined under federal securities laws. Many of
these statements can be identified by the use of terminology such as believes,
expects, intends, anticipates, plans, may, will, projects,
continues, estimates, potential, opportunity or the negative versions of
these terms and other similar expressions. These forward-looking statements may
be found in the sections of this Proxy Statement titled Proxy Overview,
Executive Compensation, Proposal No. FiveApproval of the 2017 Equity
Compensation Plan, Proposal No. SixApproval of Amendments to the Amended and
Restated Certificate of Incorporation, as Amended, and other sections of this
Proxy Statement, as well as the Other Materials. These forward-looking statements are based on our current
expectations and assumptions, and are subject to risks and uncertainties that
could cause our actual results or experience and the timing of events to differ
significantly from the forward-looking statements. Factors that could cause or
contribute to these differences include those
discussed in the Companys Annual Report on Form 10-K for the year ended
December 31, 2016, as filed with the SEC on February 27, 2017 under Risk
Factors, Managements Discussion and Analysis of Financial Condition and
Results of Operations and elsewhere in the Annual Report. You should carefully
consider that information before voting.
You should not place undue reliance on
these statements, which speak only as of the date that they were made. These
cautionary statements should be considered in connection with any written or
oral forward-looking statements that we may make in the future. We do not
undertake any obligation to release publicly any revisions to these
forward-looking statements to reflect later events or circumstances or to
reflect the occurrence of unanticipated events.
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APPROVAL
The contents of this Proxy Statement and
the sending thereof to the stockholders have been authorized by the
Board.
By Order of the Board of
Directors
G. Eric Davis
Executive Vice President, General Counsel and Secretary
April 25, 2017
A copy of our Annual Report on
Form 10-K for the year ended December 31, 2016, as filed with the SEC on
February 27, 2017, is available without charge upon written request to Investor
Relations, BioMarin Pharmaceutical Inc., 105 Digital Drive, Novato, CA 94949 or
by accessing a copy on BioMarins website at www.bmrn.com in the Investors
section under Financial InformationSEC Filings.
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BioMarin
Pharmaceutical Inc.
2017 Equity Incentive
Plan
Adopted by the
Compensation Committee of the Board of Directors: April 10, 2017
Approved by the Shareholders: ___________________,
2017
1. General.
(a)
Successor to and Continuation of Prior Plan. The Plan is intended as the successor to and continuation of
the Companys 2006 Share Incentive Plan, as amended and restated on April 16,
2015 (the 2006
Plan). From and after 12:01 a.m.
Pacific Time on the Effective Date, no additional awards will be granted under
the 2006 Plan. All Awards granted on or after 12:01 a.m. Pacific Time on the
Effective Date will be granted under this Plan. All awards granted under the
2006 Plan or under the Companys 1997 Stock Plan or the Companys 1998 Director
Option Plan (collectively, with the 2006 Plan, the Prior Plans), will
remain subject to the terms of the Prior Plans.
(i)
Any shares that
would otherwise remain available for future grants under the 2006 Plan as of
12:01 a.m. Pacific Time on the Effective Date (the 2006 Plans
Available Reserve) will cease to be available under the 2006 Plan
at such time. Instead, that number of shares of Common Stock equal to the 2006
Plans Available Reserve will be added to the Share Reserve (as further
described in Section 3(a) below) and will be immediately available for grants
and issuance pursuant to Stock Awards hereunder, up to the maximum number set
forth in Section 3(a) below.
(ii)
In addition, from and
after 12:01 a.m. Pacific Time on the Effective Date, any shares subject, at such
time, to outstanding stock awards granted under the 2006 Plan that (i) expire or
terminate for any reason prior to exercise or settlement; or (ii) are forfeited
because of the failure to meet a contingency or condition required to vest such
shares (such shares the Returning
Shares) will immediately be added
to the Share Reserve (as further described in Section 3(a) below) as and when
such shares become Returning Shares, up to the maximum number set forth in
Section 3(a) below.
(b)
Eligible Award Recipients. Employees, Directors and Consultants are eligible to receive
Awards.
(c)
Available Awards. The
Plan provides for the grant of the following Awards: (i) Incentive Stock
Options, (ii) Nonstatutory Stock Options, (iii) Stock Appreciation Rights, (iv)
Restricted Stock Awards, (v) Restricted Stock Unit Awards, (vi) Performance
Stock Awards, (vii) Performance Cash Awards, and (viii) Other Stock
Awards.
(d)
Purpose. The Plan,
through the grant of Awards, is intended to help the Company secure and retain
the services of eligible award recipients, provide incentives for such persons
to exert maximum efforts for the success of the Company and any Affiliate, and
provide a means by which the eligible recipients may benefit from increases in
value of the Common Stock.
2.
Administration.
(a)
Administration by Board. The Board will administer the Plan. The Board may delegate administration
of the Plan to a Committee or Committees, as provided in Section
2(c).
(b)
Powers of Board. The
Board will have the power, subject to, and within the limitations of, the
express provisions of the Plan:
(i)
To determine: (A) who will be granted Awards; (B)
when and how each Award will be granted; (C) what type of Award will be granted;
(D) the provisions of each Award (which need not be identical), including when a
person will be permitted to exercise or otherwise receive cash or Common Stock
under the Award; (E) the number of shares of Common Stock subject to, or the
cash value of, an Award; and (F) the Fair Market Value applicable to a Stock
Award.
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(ii) To construe and interpret the Plan and Awards granted under
it, and to establish, amend and revoke rules and regulations for administration
of the Plan and Awards. The Board, in the exercise of these powers, may correct
any defect, omission or inconsistency in the Plan or in any Award Agreement or
in the written terms of a Performance Cash Award, in a manner and to the extent
it will deem necessary or expedient to make the Plan or Award fully
effective.
(iii) To settle all controversies regarding the Plan and Awards
granted under it.
(iv) To accelerate, in whole or in part, the time at which an Award
may be exercised or vest (or the time at which cash or shares of Common Stock
may be issued in settlement thereof).
(v) To suspend or terminate the Plan at any time. Except as
otherwise provided in the Plan or an Award Agreement, suspension or termination
of the Plan will not materially impair a Participants rights under the
Participants then-outstanding Award without the Participants written consent,
except as provided in subsection (viii) below.
(vi) To amend the Plan in any respect the Board deems necessary or
advisable, including, without limitation, by adopting amendments relating to
Incentive Stock Options and certain nonqualified deferred compensation under
Section 409A of the Code and/or bringing the Plan or Awards granted under the
Plan into compliance with the requirements for Incentive Stock Options or
ensuring that they are exempt from, or compliant with, the requirements for
nonqualified deferred compensation under Section 409A of the Code, subject to
the limitations, if any, of applicable law. If required by applicable law or
listing requirements, and except as provided in Section 9(a) relating to
Capitalization Adjustments, the Company will seek shareholder approval of any
amendment of the Plan that (A) materially increases the number of shares of
Common Stock available for issuance under the Plan, (B) materially expands the
class of individuals eligible to receive Awards under the Plan, (C) materially
increases the benefits accruing to Participants under the Plan, (D) materially
reduces the price at which shares of Common Stock may be issued or purchased
under the Plan, (E) materially extends the term of the Plan, or (F) materially
expands the types of Awards available for issuance under the Plan. Except as
otherwise provided in the Plan or an Award Agreement, no amendment of the Plan
will materially impair a Participants rights under an outstanding Award without
the Participants written consent.
(vii) To submit any amendment to the Plan for shareholder approval,
including, but not limited to, amendments to the Plan intended to satisfy the
requirements of (A) Section 162(m) of the Code regarding the exclusion of
performance-based compensation from the limit on corporate deductibility of
compensation paid to Covered Employees, (B) Section 422 of the Code regarding
incentive stock options or (C) Rule 16b-3.
(viii) To approve forms of Award Agreements for use under the Plan
and to amend the terms of any one or more Awards, including, but not limited to,
amendments to provide terms more favorable to the Participant than previously
provided in the Award Agreement, subject to any specified limits in the Plan
that are not subject to Board discretion (including, without limitation, the
limits set forth in Sections 8(c) and 8(m) below); provided, however, that a
Participants rights under any Award will not be impaired by any such amendment
unless (A) the Company requests the consent of the affected Participant, and (B)
such Participant consents in writing. Notwithstanding the foregoing, (1) a
Participants rights will not be deemed to have been impaired by any such
amendment if the Board, in its sole discretion, determines that the amendment,
taken as a whole, does not materially impair the Participants rights, and (2)
subject to the limitations of applicable law, if any, the Board may amend the
terms of any one or more Awards without the affected Participants consent (A)
to maintain the qualified status of the Award as an Incentive Stock Option under
Section 422 of the Code; (B) to change the terms of an Incentive Stock Option,
if such change results in impairment of the Award solely because it impairs the
qualified status of the Award as an Incentive Stock Option under Section 422 of
the Code; (C) to clarify the manner of exemption from, or to bring the Award
into compliance with, Section 409A of the Code; or (D) to comply with other
applicable laws or listing requirements.
(ix) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests of the
Company and that are not in conflict with the provisions of the Plan or
Awards.
(x) To adopt such procedures and sub-plans as are necessary or
appropriate to permit participation in the Plan by Employees, Directors or
Consultants who are foreign nationals or employed outside the United States
(provided that Board approval will not be necessary for immaterial modifications
to the Plan or any Award Agreement that are required for compliance with the
laws of the relevant foreign jurisdiction).
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(c) Delegation to Committee.
(i) General. The Board may
delegate some or all of the administration of the Plan to a Committee or
Committees. If administration of the Plan is delegated to a Committee, the
Committee will have, in connection with the administration of the Plan, the
powers theretofore possessed by the Board that have been delegated to the
Committee, including the power to delegate to a subcommittee of the Committee
any of the administrative powers the Committee is authorized to exercise (and
references in this Plan to the Board will thereafter be to the Committee or
subcommittee, as applicable). Any delegation of administrative powers will be
reflected in resolutions, not inconsistent with the provisions of the Plan,
adopted from time to time by the Board or Committee (as applicable). The Board
may retain the authority to concurrently administer the Plan with the Committee
and may, at any time, revest in the Board some or all of the powers previously
delegated.
(ii) Section 162(m) and Rule 16b-3 Compliance. The Committee shall consist solely of two or more directors
that qualify as Outside Directors, in accordance with Section 162(m) of the
Code, and Non-Employee Directors, in accordance with Rule 16b-3.
(d) Delegation to an Officer.
To the extent permissible under applicable law, the Board may delegate to one
(1) or more Officers the authority to do one or both of the following (i)
designate Employees who are not Officers to be recipients of Options and SARs
(and, to the extent permitted by applicable law, other Stock Awards) and, to the
extent permitted by applicable law, the terms of such Awards, and (ii) determine
the number of shares of Common Stock to be subject to such Stock Awards granted
to such Employees; provided,
however,
that the Board resolutions regarding such
delegation will specify the total number of shares of Common Stock that may be
subject to the Stock Awards granted by such Officer and that such Officer may
not grant a Stock Award to himself or herself. Any such Stock Awards will be
granted on the form of Stock Award Agreement most recently approved for use by
the Committee or the Board, unless otherwise provided in the resolutions
approving the delegation authority. The Board may not delegate authority to an
Officer who is acting solely in the capacity of an Officer (and not also as a
Director) to determine the Fair Market Value pursuant to Section 13(y)(iii)
below.
(e) Effect of Boards Decision. All determinations, interpretations and constructions made by the Board
in good faith will not be subject to review by any person and will be final,
binding and conclusive on all persons.
(f) No Repricing of Awards.
Neither the Board nor any Committee will have the authority to (i) reduce the
exercise or strike price of any outstanding Option or SAR or (ii) cancel any
outstanding Option or SAR that has an exercise or strike price (per share)
greater than the then-current Fair Market Value of the Common Stock in exchange
for cash or other Stock Awards under the Plan, unless the stockholders of the
Company have approved such an action within twelve (12) months prior to such an
event.
3. Shares Subject to the Plan.
(a) Share Reserve. Subject to
Section 9(a) relating to Capitalization Adjustments, the aggregate number of
shares of Common Stock that may be issued pursuant to Stock Awards will not
exceed 20,880,015 shares (the Share
Reserve), which number is the sum of (i)
5,250,000 new shares, plus (ii) the number of shares subject to the 2006 Plans
Available Reserve, plus (iii) the number of shares that are Returning Shares, as such
shares become available from time to time (in the case of (ii) and (iii), up to
an aggregate maximum of 15,630,015
shares). For every one share of Common Stock
that is subject to a Stock Award other than an Option or SAR, the shares
available for issuance under the Plan shall be reduced by 1.92 shares. For every
one share of Common Stock that is subject to an Option or SAR, the shares
available for issuance under the Plan shall be reduced by one share. The
issuance of Substitute Awards will not reduce the number of shares available for
issuance under the Plan.
(b) Reversion of Shares to the Share Reserve.
(i) Shares Available for Subsequent Issuance.The following shares of Common Stock will become available
again for issuance under the Plan: (A) any shares subject to a Stock Award that
are not issued because such Stock Award or any portion thereof expires or
otherwise terminates without all of the shares covered by such Stock Award
having been issued; (B) any shares issued pursuant to a Stock Award that are
forfeited back to or repurchased by the Company because of the failure to meet a
contingency or condition required for the vesting of such shares. Any shares
that again become available for issuance pursuant to this paragraph shall be
added back as (a) one (1) share for every one (1) share that is subject to an
Award granted under the 2006 Plan prior to May 12, 2010; (b) one (1) share for
every one (1) share that is subject to an Option granted under the 2006 Plan on
or after May 12, 2010; (c) 1.62 shares for every one (1) share that is subject
to any Award granted under the 2006 Plan on or
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after May 12, 2010 and prior to May 15,
2013 other than an Option; (d) 1.92 shares for every one (1) share that is
subject to any Award granted under the 2006 Plan on or after May 15, 2013 other
than an Option; (e) one (1) share for every one (1) share that is subject to an
Option or SAR granted under this Plan; and (f) 1.92 Shares for every one (1)
share that is subject to an Award granted under this Plan other than an Option
or SAR.
(ii) Shares
Not Available for Subsequent Issuance. The
following shares of Common Stock will not become available again for issuance
under the Plan: (A) any shares that are reacquired or withheld (or not issued)
by the Company to satisfy the exercise, strike or purchase price of a Stock
Award granted under the Plan or a stock award granted under the Prior Plans
(including any shares subject to such award that are not delivered because such
award is exercised through a reduction of shares subject to such award
(i.e., net
exercised)); (B) any shares that are reacquired or withheld (or not issued) by
the Company to satisfy a tax withholding obligation in connection with a Stock
Award granted under the Plan or a stock award granted under the Prior Plans; (C)
any shares repurchased by the Company on the open market with the proceeds of
the exercise, strike or purchase price of a Stock Award granted under the Plan
or a stock award granted under the Prior Plans; and (D) in the event that a
Stock Appreciation Right granted under the Plan or a stock appreciation right
granted under the Prior Plans is settled in shares of Common Stock, the gross
number of shares of Common Stock subject to such award.
(c)
Incentive Stock Option Limit. Subject to the
provisions of Section 9(a) relating to Capitalization Adjustments, the aggregate
maximum number of shares of Common Stock that may be issued pursuant to the
exercise of Incentive Stock Options will be equal to 41,760,030.
(d) Section 162(m) Limitations.
Subject to the provisions of Section 9(a) relating to Capitalization
Adjustments, at such time as the Company may be subject to the applicable
provisions of Section 162(m) of the Code, the following limitations shall
apply.
(i) A maximum of
1,000,000 shares of Common Stock subject to Options, SARs and Other Stock Awards
whose value is determined by reference to an increase over an exercise or strike
price of at least 100% of the Fair Market Value on the date the Stock Award is
granted may be granted to any one Participant during any one calendar
year.
(ii) A maximum of
1,000,000 shares of Common Stock subject to Performance Stock Awards may be
granted to any one Participant during any one calendar year (whether the grant,
vesting or exercise is contingent upon the attainment during the Performance
Period of the Performance Goals).
(iii) A maximum of
$10,000,000 may be granted as a Performance Cash Award to any one Participant
during any one calendar year.
(e)
Limitation on Grants to Non-Employee Directors. The (i) maximum number of shares of Common Stock subject to Stock Awards
granted under the Plan or otherwise during any one calendar year (beginning with
the 2018 calendar year) to any Non-Employee Director, taken together with the
(ii) cash fees paid by the Company to such Non-Employee Director during such
calendar year, and in both cases for service on the Board, will not exceed
$1,000,000 in total value (calculating the value of any such Stock Awards based
on the grant date fair value of such Stock Awards for financial reporting
purposes), or, with respect to the calendar year in which a Non-Employee
Director is first appointed or elected to the Board, $1,500,000.
(f) Source
of Shares. The stock issuable under the Plan
will be shares of authorized but unissued or reacquired Common Stock, including
shares repurchased by the Company on the open market or otherwise.
4.
Eligibility.
(a)
Eligibility for Specific Stock Awards.
Incentive Stock Options may be granted only to employees of the Company or a
parent corporation or subsidiary corporation thereof (as such terms are
defined in Sections 424(e) and 424(f) of the Code). Stock Awards other than
Incentive Stock Options may be granted to Employees, Directors and
Consultants; provided, however, that Stock Awards may not be granted to Employees, Directors
and Consultants who are providing Continuous Service only to any parent of the
Company, as such term is defined in Rule 405 of the Securities Act, unless (i)
the stock underlying such Stock Awards is treated as service recipient stock
under Section 409A of the Code (for example, because the Stock Awards are
granted pursuant to a corporate transaction such as a spin off transaction),
(ii) the Company, in consultation with its legal counsel, has determined that
such Stock Awards are otherwise exempt from Section 409A of the Code, or (iii)
the Company, in consultation with its legal counsel, has determined that such
Stock Awards comply with the distribution requirements of Section 409A of the
Code.
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(b) Ten Percent Shareholders. A Ten Percent Shareholder will not be granted an Incentive
Stock Option unless the exercise price of such Option is at least 110% of the
Fair Market Value on the date of grant and the Option is not exercisable after
the expiration of five years from the date of grant.
5. Provisions Relating to Options and
Stock Appreciation Rights.
Each Option or SAR will be in such form
and will contain such terms and conditions as the Board deems appropriate. All
Options will be separately designated Incentive Stock Options or Nonstatutory
Stock Options at the time of grant, and, if certificates are issued, a separate
certificate or certificates will be issued for shares of Common Stock purchased
on exercise of each type of Option. If an Option is not specifically designated
as an Incentive Stock Option, or if an Option is designated as an Incentive
Stock Option but some portion or all of the Option fails to qualify as an
Incentive Stock Option under the applicable rules, then the Option (or portion
thereof) will be a Nonstatutory Stock Option. The provisions of separate Options
or SARs need not be identical; provided,
however, that each Award Agreement will
conform to (through incorporation of provisions hereof by reference in the
applicable Award Agreement or otherwise) the substance of each of the following
provisions:
(a) Term.
Subject to the provisions of Section 4(b) regarding Ten Percent Shareholders, no
Option or SAR will be exercisable after the expiration of ten years from the
date of its grant or such shorter period specified in the Award
Agreement.
(b) Exercise Price. Subject to the provisions of Section 4(b) regarding Ten Percent
Shareholders and except in the case of Substitute Awards, the exercise or strike
price of each Option or SAR will be not less than 100% of the Fair Market Value
of the Common Stock subject to the Option or SAR on the date the Award is
granted. Notwithstanding the foregoing, an Option or SAR may be granted with an
exercise or strike price lower than 100% of the Fair Market Value of the Common
Stock subject to the Award if such Award is granted pursuant to an assumption of
or substitution for another option or stock appreciation right pursuant to a
Corporate Transaction and in a manner consistent with the provisions of Section
409A of the Code and, if applicable, Section 424(a) of the Code. Each SAR will
be denominated in shares of Common Stock equivalents.
(c) Purchase Price for
Options. The purchase price of Common Stock
acquired pursuant to the exercise of an Option may be paid, to the extent
permitted by applicable law and as determined by the Board in its sole
discretion, by any combination of the methods of payment set forth below. The
Board will have the authority to grant Options that do not permit all of the
following methods of payment (or otherwise restrict the ability to use certain
methods) and to grant Options that require the consent of the Company to use a
particular method of payment. The permitted methods of payment are as follows:
(i) by
cash, check, bank draft or money order payable to the Company;
(ii)
pursuant to a program developed under Regulation T as promulgated by the Federal
Reserve Board that, prior to the issuance of the stock subject to the Option,
results in either the receipt of cash (or check) by the Company or the receipt
of irrevocable instructions to pay the aggregate exercise price to the Company
from the sales proceeds;
(iii) by
delivery to the Company (either by actual delivery or attestation) of shares of
Common Stock;
(iv) if an
Option is a Nonstatutory Stock Option, by a net exercise arrangement pursuant
to which the Company will reduce the number of shares of Common Stock issuable
upon exercise by the largest whole number of shares with a Fair Market Value
that does not exceed the aggregate exercise price; provided, however, that the Company
will accept a cash or other payment from the Participant to the extent of any
remaining balance of the aggregate exercise price not satisfied by such
reduction in the number of whole shares to be issued. Shares of Common Stock
will no longer be subject to an Option and will not be exercisable thereafter to
the extent that (A) shares issuable upon exercise are used to pay the exercise
price pursuant to the net exercise, (B) shares are delivered to the
Participant as a result of such exercise, and (C) shares are withheld to satisfy
tax withholding obligations; or
(v) in any
other form of legal consideration that may be acceptable to the Board and
specified in the applicable Award Agreement.
(d) Exercise and Payment of a
SAR. To exercise any outstanding SAR, the
Participant must provide written notice of exercise to the Company in compliance
with the provisions of the Stock Appreciation Right Agreement evidencing such
SAR. The appreciation distribution payable on the exercise of a SAR will be not
greater than an amount equal to the excess of (A) the aggregate Fair Market
Value (on the date of the exercise of the SAR) of a number of shares of Common
Stock equal to the number of Common Stock equivalents in which the Participant
is vested under such SAR, and with respect to which the Participant is
exercising the SAR
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on such date, over (B) the aggregate strike
price of
the number of Common Stock equivalents with respect to which the Participant is
exercising the SAR on such date. The appreciation distribution may be paid in
Common Stock, in cash, in any combination of the two or in any other form of
consideration, as determined by the Board and contained in the Award Agreement
evidencing such SAR.
(e) Transferability of Options and
SARs. The Board may, in its sole discretion,
impose such limitations on the transferability of Options and SARs as the Board
will determine. In the absence of such a determination by the Board to the
contrary, the following restrictions on the transferability of Options and SARs
will apply:
(i) Restrictions on Transfer. An Option or SAR will not be transferable except by will or
by the laws of descent and distribution (or pursuant to subsections (ii) and
(iii) below), and will be exercisable during the lifetime of the Participant
only by the Participant. The Board may permit transfer of the Option or SAR in a
manner that is not prohibited by applicable tax and securities laws. Except as
explicitly provided in the Plan, neither an Option nor a SAR may be transferred
for consideration.
(ii) Domestic Relations
Orders. Subject to the approval of the Board or a
duly authorized Officer, an Option or SAR may be transferred pursuant to the
terms of a domestic relations order, official marital settlement agreement or
other divorce or separation instrument as permitted by Treasury Regulations
Section 1.421-1(b)(2). If an Option is an Incentive Stock Option, such Option
may be deemed to be a Nonstatutory Stock Option as a result of such transfer.
(iii) Beneficiary Designation. Subject to the approval of the Board or a duly authorized
Officer, a Participant may, by delivering written notice to the Company, in a
form approved by the Company (or the designated broker), designate a third party
who, on the death of the Participant, will thereafter be entitled to exercise
the Option or SAR and receive the Common Stock or other consideration resulting
from such exercise. In the absence of such a designation, upon the death of the
Participant, the executor or administrator of the Participants estate will be
entitled to exercise the Option or SAR and receive the Common Stock or other
consideration resulting from such exercise. However, the Company may prohibit
designation of a beneficiary at any time, including due to any conclusion by the
Company that such designation would be inconsistent with the provisions of
applicable laws.
(f) Vesting Generally. The total number of shares of Common Stock subject to an
Option or SAR may vest and become exercisable in periodic installments that may
or may not be equal. The Option or SAR may be subject to such other terms and
conditions on the time or times when it may or may not be exercised (which may
be based on the satisfaction of Performance Goals or other criteria) as the
Board may deem appropriate. The vesting provisions of individual Options or SARs
may vary. The provisions of this Section 5(f) are subject to any Option or SAR
provisions governing the minimum number of shares of Common Stock as to which an
Option or SAR may be exercised.
(g) Termination of Continuous
Service. Except as otherwise provided in the
applicable Award Agreement or other agreement between the Participant and the
Company, if a Participants Continuous Service terminates (other than for Cause
and other than upon the Participants death or Disability), the Participant may
exercise his or her Option or SAR (to the extent that the Participant was
entitled to exercise such Award as of the date of termination of Continuous
Service) within the period of time ending on the earlier of (i) the date three
months following the termination of the Participants Continuous Service (or
such longer or shorter period specified in the applicable Award Agreement), and
(ii) the expiration of the term of the Option or SAR as set forth in the Award
Agreement. If, after termination of Continuous Service, the Participant does not
exercise his or her Option or SAR (as applicable) within the applicable time
frame, the Option or SAR will terminate.
(h) Extension of Termination
Date. If the exercise of an Option or SAR
following the termination of the Participants Continuous Service (other than
for Cause and other than upon the Participants death or Disability) would be
prohibited at any time solely because the issuance of shares of Common Stock
would violate the registration requirements under the Securities Act, then the
Option or SAR will terminate on the earlier of (i) the expiration of a total
period of time (that need not be consecutive) equal to the applicable post
termination exercise period after the termination of the Participants
Continuous Service during which the exercise of the Option or SAR would not be
in violation of such registration requirements, and (ii) the expiration of the
term of the Option or SAR as set forth in the applicable Award Agreement. In
addition, unless otherwise provided in a Participants Award Agreement, if the
sale of any Common Stock received on exercise of an Option or SAR following the
termination of the Participants Continuous Service (other than for Cause) would
violate the Companys insider trading policy, then the Option or SAR will
terminate on the earlier of (i) the expiration of a period of months (that need
not be consecutive) equal to the applicable post-termination exercise period
after the termination of the Participants Continuous Service during which the
sale of the Common Stock received upon exercise of the Option or SAR would not
be in violation of the Companys insider trading policy, or (ii) the expiration
of the term of the Option or SAR as set forth in the applicable Award
Agreement.
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(i) Disability of Participant. Except as otherwise provided in the applicable Award
Agreement or other agreement between the Participant and the Company, if a
Participants Continuous Service terminates as a result of the Participants
Disability, the Participant may exercise his or her Option or SAR (to the extent
that the Participant was entitled to exercise such Option or SAR as of the date
of termination of Continuous Service), but only within such period of time
ending on the earlier of (i) the date 12 months following such termination of
Continuous Service (or such longer or shorter period specified in the Award
Agreement), and (ii) the expiration of the term of the Option or SAR as set
forth in the Award Agreement. If, after termination of Continuous Service, the
Participant does not exercise his or her Option or SAR within the applicable
time frame, the Option or SAR (as applicable) will terminate.
(j) Death of Participant. Except as otherwise provided in the applicable Award Agreement
or other agreement between the Participant and the Company, if (i) a
Participants Continuous Service terminates as a result of the Participants
death, or (ii) the Participant dies within the period (if any) specified in the
Award Agreement for exercisability after the termination of the Participants
Continuous Service for a reason other than death, then the Option or SAR may be
exercised (to the extent the Participant was entitled to exercise such Option or
SAR as of the date of death) by the Participants estate, by a person who
acquired the right to exercise the Option or SAR by bequest or inheritance or by
a person designated to exercise the Option or SAR upon the Participants death,
but only within the period ending on the earlier of (i) the date 12 months
following the date of death (or such longer or shorter period specified in the Award
Agreement), and (ii) the expiration of the term of such Option or SAR as set
forth in the Award Agreement. If, after the Participants death, the Option or
SAR is not exercised within the applicable time frame, the Option or SAR (as
applicable) will terminate.
(k) Termination for Cause. Except as explicitly provided otherwise in a Participants
Award Agreement or other individual written agreement between the Company or any
Affiliate and the Participant, if a Participants Continuous Service is
terminated for Cause, the Option or SAR will terminate immediately upon such
Participants termination of Continuous Service, and the Participant will be
prohibited from exercising his or her Option or SAR from and after the time of
such termination of Continuous Service.
(l) Non-Exempt Employees. If an Option or SAR is granted to an Employee who is a
non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as
amended, the Option or SAR will not be first exercisable for any shares of
Common Stock until at least six months following the date of grant of the Option
or SAR (although the Award may vest prior to such date). Consistent with the
provisions of the Worker Economic Opportunity Act, (i) if such non-exempt
Employee dies or suffers a Disability, (ii) upon a Corporate Transaction in
which such Option or SAR is not assumed, continued, or substituted, (iii) upon a
Change in Control, or (iv) upon the Participants retirement (as such term may
be defined in the Participants Award Agreement in another agreement between the
Participant and the Company, or, if no such definition, in accordance with the
Companys then current employment policies and guidelines), the vested portion
of any Options and SARs may be exercised earlier than six months following the
date of grant. The foregoing provision is intended to operate so that any income
derived by a non-exempt employee in connection with the exercise or vesting of
an Option or SAR will be exempt from his or her regular rate of pay. To the
extent permitted and/or required for compliance with the Worker Economic
Opportunity Act to ensure that any income derived by a non-exempt employee in
connection with the exercise, vesting or issuance of any shares under any other
Stock Award will be exempt from the employees regular rate of pay, the
provisions of this Section 5(l) will apply to all Stock Awards and are hereby
incorporated by reference into such Stock Award Agreements.
6. Provisions of Stock Awards other than
Options and SARs.
(a) Restricted Stock Awards. Each Restricted Stock Award Agreement will be in such form
and will contain such terms and conditions as the Board will deem appropriate.
To the extent consistent with the Companys bylaws, at the Boards election,
shares of Common Stock may be (x) held in book entry form subject to the
Companys instructions until any restrictions relating to the Restricted Stock
Award lapse; or (y) evidenced by a certificate, which certificate will be held
in such form and manner as determined by the Board. The terms and conditions of
Restricted Stock Award Agreements may change from time to time, and the terms
and conditions of separate Restricted Stock Award Agreements need not be
identical. Each Restricted Stock Award Agreement will conform to (through
incorporation of the provisions hereof by reference in the agreement or
otherwise) the substance of each of the following provisions:
(i) Consideration. A Restricted Stock Award may be awarded in consideration for (A) cash,
check, bank draft or money order payable to the Company, (B) past services to
the Company or an Affiliate, or (C) any other form of legal consideration that
may be acceptable to the Board, in its sole discretion, and permissible under
applicable law.
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(ii) Vesting. Shares of Common Stock awarded under the Restricted Stock Award Agreement
may be subject to forfeiture to the Company in accordance with a vesting
schedule to be determined by the Board.
(iii) Termination of Participants
Continuous Service. If a Participants Continuous
Service terminates, the Company may receive through a forfeiture condition or a
repurchase right any or all of the shares of Common Stock held by the
Participant that have not vested as of the date of termination of Continuous
Service under the terms of the Restricted Stock Award Agreement.
(iv) Transferability. Rights to acquire shares of Common Stock under the Restricted
Stock Award Agreement will be transferable by the Participant only upon such
terms and conditions as are set forth in the Restricted Stock Award Agreement,
as the Board will determine in its sole discretion, so long as Common Stock
awarded under the Restricted Stock Award Agreement remains subject to the terms
of the Restricted Stock Award Agreement.
(b) Restricted Stock Unit Awards.
Each Restricted Stock Unit Award Agreement will
be in such form and will contain such terms and conditions as the Board will
deem appropriate. The terms and conditions of Restricted Stock Unit Award
Agreements may change from time to time, and the terms and conditions of
separate Restricted Stock Unit Award Agreements need not be identical. Each
Restricted Stock Unit Award Agreement will conform to (through incorporation of
the provisions hereof by reference in the Agreement or otherwise) the substance
of each of the following provisions:
(i) Consideration. At the time of grant of a Restricted Stock Unit Award, the Board will
determine the consideration, if any, to be paid by the Participant upon delivery
of each share of Common Stock subject to the Restricted Stock Unit Award. The
consideration to be paid (if any) by the Participant for each share of Common
Stock subject to a Restricted Stock Unit Award may be paid in any form of legal
consideration that may be acceptable to the Board, in its sole discretion, and
permissible under applicable law.
(ii) Vesting. At the time of the grant of a Restricted Stock Unit Award, the Board may
impose such restrictions on or conditions to the vesting of the Restricted Stock
Unit Award as it, in its sole discretion, deems appropriate.
(iii) Payment. A Restricted Stock Unit Award may be settled by the delivery of shares
of Common Stock, their cash equivalent, any combination thereof or in any other
form of consideration, as determined by the Board and contained in the
Restricted Stock Unit Award Agreement.
(iv) Additional Restrictions. At the time of the grant of a Restricted Stock Unit Award, the
Board, as it deems appropriate, may impose such restrictions or conditions that
delay the delivery of the shares of Common Stock (or their cash equivalent)
subject to a Restricted Stock Unit Award to a time after the vesting of such
Restricted Stock Unit Award.
(v) Termination of Participants
Continuous Service. Except as otherwise provided
in the applicable Restricted Stock Unit Award Agreement, such portion of the
Restricted Stock Unit Award that has not vested will be forfeited upon the
Participants termination of Continuous Service.
(c) Performance Awards.
(i) Performance Stock Awards. A Performance Stock Award is a Stock Award (covering a
number of shares not in excess of that set forth in Section 3(d) above) that is
payable (including that may be granted, may vest or may be exercised) contingent
upon the attainment during a Performance Period of certain Performance Goals. A
Performance Stock Award may, but need not, require the Participants completion
of a specified period of Continuous Service. The length of any Performance
Period, the Performance Goals to be achieved during the Performance Period, and
the measure of whether and to what degree such Performance Goals have been
attained will be conclusively determined by the Committee (or, to the extent
that an Award is not intended to qualify as performance-based compensation
under Section 162(m) of the Code, the Board or the Committee), in its sole
discretion. In addition, to the extent permitted by applicable law and the
applicable Award Agreement, the Board or the Committee may determine that cash
may be used in payment of Performance Stock Awards.
(ii) Performance Cash Awards. A Performance Cash Award is a cash award (for a dollar value
not in excess of that set forth in Section 3(d) above) that is payable
contingent upon the attainment during a Performance Period of certain
Performance Goals. A Performance Cash Award may also require the completion of a
specified period of Continuous Service. At the time of grant of a Performance
Cash Award, the length of any Performance Period, the Performance Goals to be
achieved during the Performance Period, and the measure of whether and to what
degree such Performance Goals have been attained will
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be conclusively determined by the
Committee (or, to the extent that an Award is not intended to qualify as
performance-based compensation under Section 162(m) of the Code, the Board or
the Committee), in its sole discretion. The Board or the Committee may specify
the form of payment of Performance Cash Awards, which may be cash or other
property, or may provide for a Participant to have the option for his or her
Performance Cash Award, or such portion thereof as the Board or the Committee
may specify, to be paid in whole or in part in cash or other
property.
(iii) Committee and Board
Discretion. With respect to any Performance Stock
Award or Performance Cash Award, the Committee (or, to the extent that an Award
is not intended to qualify as performance-based compensation under Section
162(m) of the Code, the Board or the Committee) retains the discretion to reduce
or eliminate the compensation or economic benefit due upon attainment of
Performance Goals and to define the manner of calculating the Performance
Criteria it selects to use for a Performance Period. Partial achievement of the
specified criteria may result in the payment or vesting corresponding to the
degree of achievement as specified in the Stock Award Agreement or the written
terms of a Performance Cash Award.
(iv) Section 162(m) Compliance. Unless otherwise permitted in compliance with the
requirements of Section 162(m) of the Code with respect to an Award intended to
qualify as performance-based compensation thereunder, the Committee will
establish the Performance Goals applicable to, and the formula for calculating
the amount payable under, the Award no later than the earlier of (a) the date 90
days after the commencement of the applicable Performance Period, and (b) the
date on which 25% of the Performance Period has elapsed, and in any event at a
time when the achievement of the applicable Performance Goals remains
substantially uncertain. Prior to the payment of any compensation under an Award
intended to qualify as performance-based compensation under Section 162(m) of
the Code, the Committee will certify the extent to which any Performance Goals
and any other material terms under such Award have been satisfied (other than in
cases where such Performance Goals relate solely to the increase in the value of
the Common Stock). Notwithstanding satisfaction of, or completion of any
Performance Goals, the number of shares of Common Stock, Options, cash or other
benefits granted, issued, retainable and/or vested under an Award on account of
satisfaction of such Performance Goals may be reduced by the Committee on the
basis of such further considerations as the Committee, in its sole discretion,
will determine.
(d) Other Stock Awards. Other forms of Stock Awards valued in whole or in part by
reference to, or otherwise based on, Common Stock, including the appreciation in
value thereof (e.g., options or stock rights with an exercise price or strike
price less than 100% of the Fair Market Value of the Common Stock at the time of
grant) may be granted either alone or in addition to Stock Awards provided for
under Section 5 and the preceding provisions of this Section 6. Subject to the
provisions of the Plan, the Board will have sole and complete authority to
determine the persons to whom and the time or times at which such Other Stock
Awards will be granted, the number of shares of Common Stock (or the cash
equivalent thereof) to be granted pursuant to such Other Stock Awards and all
other terms and conditions of such Other Stock Awards.
7. Covenants of the Company.
(a) Availability of Shares. The Company will keep available at all times the number of
shares of Common Stock reasonably required to satisfy then-outstanding
Awards.
(b) Securities Law Compliance. The Company will seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to grant Stock Awards and to issue and sell shares of Common Stock upon
exercise of the Stock Awards; provided,
however, that this undertaking will not
require the Company to register under the Securities Act the Plan, any Stock
Award or any Common Stock issued or issuable pursuant to any such Stock Award.
If, after reasonable efforts and at a reasonable cost, the Company is unable to
obtain from any such regulatory commission or agency the authority that counsel
for the Company deems necessary for the lawful issuance and sale of Common Stock
under the Plan, the Company will be relieved from any liability for failure to
issue and sell Common Stock upon exercise of such Stock Awards unless and until
such authority is obtained. A Participant will not be eligible for the grant of
an Award or the subsequent issuance of cash or Common Stock pursuant to the
Award if such grant or issuance would be in violation of any applicable
securities law.
(c) No Obligation to Notify or Minimize
Taxes. The Company will have no duty or
obligation to any Participant to advise such holder as to the time or manner of
exercising such Stock Award. Furthermore, the Company will have no duty or
obligation to warn or otherwise advise such holder of a pending termination or
expiration of an Award or a possible period in which the Award may not be
exercised. The Company has no duty or obligation to minimize the tax
consequences of an Award to the holder of such Award.
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8. Miscellaneous.
(a) Use of Proceeds from Sales of Common
Stock. Proceeds from the sale of shares of Common
Stock pursuant to Awards will constitute general funds of the
Company.
(b) Corporate Action Constituting Grant of
Awards. Corporate action constituting a grant by
the Company of an Award to any Participant will be deemed completed as of the
date of such corporate action, unless otherwise determined by the Board,
regardless of when the instrument, certificate, or letter evidencing the Award
is communicated to, or actually received or accepted by, the Participant. In the
event that the corporate records (e.g., Board consents, resolutions or minutes)
documenting the corporate action constituting the grant contain terms (e.g.,
exercise price, vesting schedule or number of shares) that are inconsistent with
those in the Award Agreement or related grant documents as a result of a
clerical error in the papering of the Award Agreement or related grant
documents, the corporate records will control and the Participant will have no
legally binding right to the incorrect term in the Award Agreement or related
grant documents.
(c) Shareholder Rights. No Participant will be deemed to be the holder of, or to have
any of the rights of a holder with respect to, any shares of Common Stock
subject to an Award unless and until (i) such Participant has satisfied all
requirements for exercise of, or the issuance of shares of Common Stock under,
the Award pursuant to its terms, and (ii) the issuance of the Common Stock
subject to such Award has been entered into the books and records of the
Company.
(d) No Employment or Other Service
Rights. Nothing in the Plan, any Award Agreement
or any other instrument executed thereunder or in connection with any Award
granted pursuant thereto will confer upon any Participant any right to continue
to serve the Company or an Affiliate in the capacity in effect at the time the
Award was granted or will affect the right of the Company or an Affiliate to
terminate (i) the employment of an Employee with or without notice and with or
without cause, (ii) the service of a Consultant pursuant to the terms of such
Consultants agreement with the Company or an Affiliate, or (iii) the service of
a Director pursuant to the bylaws of the Company or an Affiliate, and any
applicable provisions of the corporate law of the state in which the Company or
the Affiliate is incorporated, as the case may be.
(e) Change in Time Commitment. In the event a Participants regular level of time commitment
in the performance of his or her services for the Company and any Affiliates is
reduced (for example, and without limitation, if the Participant is an Employee
of the Company and the Employee has a change in status from a full-time Employee
to a part-time Employee or takes an extended leave of absence) after the date of
grant of any Award to the Participant, the Board has the right in its sole
discretion to (x) make a corresponding reduction in the number of shares or cash
amount subject to any portion of such Award that is scheduled to vest or become
payable after the date of such change in time commitment, and (y) in lieu of or
in combination with such a reduction, extend the vesting or payment schedule
applicable to such Award. In the event of any such reduction, the Participant
will have no right with respect to any portion of the Award that is so reduced
or extended.
(f) Incentive Stock Option
Limitations. To the extent that the aggregate
Fair Market Value (determined at the time of grant) of Common Stock with respect
to which Incentive Stock Options are exercisable for the first time by any
Optionholder during any calendar year (under all plans of the Company and any
Affiliates) exceeds $100,000 (or such other limit established in the Code) or
otherwise does not comply with the rules governing Incentive Stock Options, the
Options or portions thereof that exceed such limit (according to the order in
which they were granted) or otherwise do not comply with such rules will be
treated as Nonstatutory Stock Options, notwithstanding any contrary provision of
the applicable Option Agreement(s).
(g) Investment Assurances. The Company may require a Participant, as a condition of
exercising or acquiring Common Stock under any Award, (i) to give written
assurances satisfactory to the Company as to the Participants knowledge and
experience in financial and business matters and/or to employ a purchaser
representative reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters and that such Participant is
capable of evaluating, alone or together with the purchaser representative, the
merits and risks of exercising the Award; and (ii) to give written assurances
satisfactory to the Company stating that the Participant is acquiring Common
Stock subject to the Award for the Participants own account and not with any
present intention of selling or otherwise distributing the Common Stock. The
foregoing requirements, and any assurances given pursuant to such requirements,
will be inoperative if (A) the issuance of the shares upon the exercise or
acquisition of Common Stock under the Award has been registered under a then
currently effective registration statement under the Securities Act, or (B) as
to any particular requirement, a determination is made by counsel for the
Company that such requirement need not be met in the circumstances under the
then applicable securities laws. The Company may, upon advice of counsel to the
Company, place legends
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on stock certificates issued under the
Plan as such counsel deems necessary or appropriate in order to comply with
applicable securities laws, including, but not limited to, legends restricting
the transfer of the Common Stock.
(h) Withholding Obligations. Unless prohibited by the terms of an Award Agreement, the
Company may, in its sole discretion, satisfy any federal, state or local tax
withholding obligation relating to an Award by any of the following means or by
a combination of such means: (i) causing the Participant to tender a cash
payment; (ii) withholding shares of Common Stock from the shares of Common Stock
issued or otherwise issuable to the Participant in connection with the Award;
provided, however, that no shares of Common Stock are withheld with a value exceeding an
amount of tax calculated based on the maximum statutory tax rates in a
Participants applicable tax jurisdiction (or such other amount as may be
necessary to avoid classification of the Stock Award as a liability for
financial accounting purposes); (iii) withholding cash from an Award settled in
cash; (iv) withholding payment from any amounts otherwise payable to the
Participant; or (v) by such other method as may be set forth in the Award
Agreement.
(i) Electronic Delivery. Any reference herein to a written agreement or document
will include any agreement or document delivered electronically, filed publicly
at www.sec.gov (or any successor website thereto) or posted on the Companys intranet
(or other shared electronic medium controlled by the Company to which the
Participant has access).
(j) Deferrals. To the extent permitted by applicable law, the Board, in its sole
discretion, may determine that the delivery of Common Stock or the payment of
cash, upon the exercise, vesting or settlement of all or a portion of any Award
may be deferred and may establish programs and procedures for deferral elections
to be made by Participants. Deferrals by Participants will be made in accordance
with Section 409A of the Code. Consistent with Section 409A of the Code, the
Board may provide for distributions while a Participant is still an employee or
otherwise providing services to the Company. The Board is authorized to make
deferrals of Awards and determine when, and in what annual percentages,
Participants may receive payments, including lump sum payments, following the
Participants termination of Continuous Service, and implement such other terms
and conditions consistent with the provisions of the Plan and in accordance with
applicable law.
(k) Compliance with Section 409A of the
Code. Unless otherwise expressly provided for in
an Award Agreement, the Plan and Award Agreements will be interpreted to the
greatest extent possible in a manner that makes the Plan and the Awards granted
hereunder exempt from Section 409A of the Code, and, to the extent not so
exempt, in compliance with Section 409A of the Code. If the Board determines
that any Award granted hereunder is not exempt from and is therefore subject to
Section 409A of the Code, the Award Agreement evidencing such Award will
incorporate the terms and conditions necessary to avoid the consequences
specified in Section 409A(a)(1) of the Code, and to the extent an Award
Agreement is silent on terms necessary for compliance, such terms are hereby
incorporated by reference into the Award Agreement. Notwithstanding anything to
the contrary in this Plan (and unless the Award Agreement specifically provides
otherwise), if the shares of Common Stock are publicly traded, and if a
Participant holding an Award that constitutes deferred compensation under
Section 409A of the Code is a specified employee for purposes of Section 409A
of the Code, no distribution or payment of any amount that is due because of a
separation from service (as defined in Section 409A of the Code without regard
to alternative definitions thereunder) will be issued or paid before the date
that is six months following the date of such Participants separation from
service (as defined in Section 409A of the Code without regard to alternative
definitions thereunder) or, if earlier, the date of the Participants death,
unless such distribution or payment can be made in a manner that complies with
Section 409A of the Code, and any amounts so deferred will be paid in a lump sum
on the day after such six month period elapses, with the balance paid thereafter
on the original schedule.
(l) Clawback/Recovery. All Awards granted under the Plan will be subject to
recoupment in accordance with any clawback policy that the Company is required
to adopt pursuant to the listing standards of any national securities exchange
or association on which the Companys securities are listed or as is otherwise
required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or
other applicable law. In addition, the Board may impose such other clawback,
recovery or recoupment provisions in an Award Agreement as the Board determines
necessary or appropriate, including but not limited to a reacquisition right in
respect of previously acquired shares of Common Stock or other cash or property
upon the occurrence of an event constituting Cause. No recovery of compensation
under such a clawback policy will be an event giving rise to a right to resign
for good reason or constructive termination (or similar term) under any
agreement with the Company.
(m) Dividends and Dividend
Equivalents. Dividends and dividend equivalents
may be credited in respect of shares of Common Stock covered by a Stock Award
(other than Options and Stock Appreciation Rights), as determined by the Board
and contained in the applicable Award Agreement. At the sole discretion of the
Board, such dividends and dividend equivalents may be converted into additional
shares of Common Stock covered by the Stock Award in such manner as determined
by the Board.
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Any additional shares or cash payments
covered by the Stock Award credited by reason of such dividends or dividend
equivalents will be subject to all of the same terms and conditions of the
underlying Award Agreement to which they relate. Notwithstanding anything to the
contrary in this Plan or any Award Agreement, dividends and dividend equivalents
shall not be paid in respect of shares of Common Stock covered by a Stock Award
until such shares of Common Stock vest pursuant to the applicable Award
Agreement.
9. Adjustments upon Changes in Common
Stock; Other Corporate Events.
(a) Capitalization Adjustments. In the event of a Capitalization Adjustment, the Board will
appropriately and proportionately adjust: (i) the class(es) and maximum number
of securities subject to the Plan pursuant to Section 3(a), (ii) the class(es)
and maximum number of securities that may be issued pursuant to the exercise of
Incentive Stock Options pursuant to Section 3(c), (iii) the class(es) and
maximum number of securities that may be awarded to any person pursuant to
Sections 3(d), and (iv) the class(es) and number of securities and price per
share of stock subject to outstanding Stock Awards. The Board will make such
adjustments, and its determination will be final, binding and
conclusive.
(b) Dissolution. Except as otherwise provided in the Stock Award Agreement, in the event
of a Dissolution of the Company, all outstanding Stock Awards (other than Stock
Awards consisting of vested and outstanding shares of Common Stock not subject
to a forfeiture condition or the Companys right of repurchase) will terminate
immediately prior to the completion of such Dissolution, and the shares of
Common Stock subject to the Companys repurchase rights or subject to a
forfeiture condition may be repurchased or reacquired by the Company
notwithstanding the fact that the holder of such Stock Award is providing
Continuous Service; provided,
however, that the Board may, in its sole
discretion, cause some or all Stock Awards to become fully vested, exercisable
and/or no longer subject to repurchase or forfeiture (to the extent such Stock
Awards have not previously expired or terminated) before the Dissolution is
completed but contingent on its completion.
(c) Transactions. The following provisions shall apply to Stock Awards in the event of a
Transaction unless otherwise provided in the instrument evidencing the Stock
Award or any other written agreement between the Company or any Affiliate and
the Participant or unless otherwise expressly provided by the Board at the time
of grant of a Stock Award. In the event of a Transaction, then, notwithstanding
any other provision of the Plan, the Board shall take one or more of the
following actions with respect to Stock Awards, contingent upon the closing or
completion of the Transaction:
(i) arrange
for the surviving corporation or acquiring corporation (or the surviving or
acquiring corporations parent company) to assume or continue the Stock Award or
to substitute a similar stock award for the Stock Award (including, but not
limited to, an award to acquire the same consideration paid to the shareholders
of the Company pursuant to the Transaction);
(ii)
arrange for the assignment of any reacquisition or repurchase rights held by the
Company in respect of Common Stock issued pursuant to the Stock Award to the
surviving corporation or acquiring corporation (or the surviving or acquiring
corporations parent company);
(iii)
accelerate the vesting, in whole or in part, of the Stock Award (and, if
applicable, the time at which the Stock Award may be exercised) to a date prior
to the effective time of such Transaction as the Board shall determine (or, if
the Board shall not determine such a date, to the date that is five days prior
to the effective date of the Transaction), with such Stock Award terminating if
not exercised (if applicable) at or prior to the effective time of the
Transaction;
(iv)
arrange for the lapse, in whole or in part, of any reacquisition or repurchase
rights held by the Company with respect to the Stock Award;
(v) cancel
or arrange for the cancellation of the Stock Award, to the extent not vested or
not exercised prior to the effective time of the Transaction, in exchange for
such cash consideration, if any, as the Board, in its sole discretion, may
consider appropriate; and
(vi) make a
payment, in such form as may be determined by the Board equal to the excess, if
any, of (A) the value of the property the Participant would have received upon
the exercise of the Stock Award immediately prior to the effective time of the
Transaction, over (B) any exercise price payable by such holder in connection
with such exercise. For clarity, this payment may be zero ($0) if the value of
the property is equal to or less than the exercise price. Payments under this
provision may be delayed to the same extent that payment of consideration to the
holders of Common Stock in connection with the Transaction is delayed as a
result of escrows, earn outs, holdbacks or other contingencies.
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The Board need not take the same action or
actions with respect to all Stock Awards or portions thereof or with respect to
all Participants. The Board may take different actions with respect to the
vested and unvested portions of a Stock Award.
(d) Change in Control. A Stock Award may be subject to additional acceleration of
vesting and exercisability upon or after a Change in Control as may be provided
in the Stock Award Agreement for such Stock Award or as may be provided in any
other written agreement between the Company or any Affiliate and the
Participant, but in the absence of such provision, no such acceleration will
occur.
10. Plan Term; Earlier Termination or
Suspension of the Plan.
The Board may suspend or terminate the
Plan at any time. No Incentive Stock Options may be granted after the tenth
anniversary of the earlier of (i) the date the Plan is adopted by the Board (the
Adoption Date), or (ii) the date the Plan is approved by the shareholders of the
Company. No Awards may be granted under the Plan while the Plan is suspended or
after it is terminated. Suspension or termination of the Plan will not impair
rights and obligations under any Award granted while the Plan is in effect
except with the written consent of the affected Participant or as otherwise
permitted in the Plan.
11. Existence of the Plan.
The Plan will become effective on the
Effective Date.
12. Choice of Law.
The law of the State of Delaware will
govern all questions concerning the construction, validity and interpretation of
this Plan, without regard to that states conflict of laws rules.
13. Definitions. As used in the Plan, the following definitions will apply to the
capitalized terms indicated below:
(a)
Affiliate
means, at the time of determination, any parent or subsidiary of the Company
as such terms are defined in Rule 405 of the Securities Act. The Board will have
the authority to determine the time or times at which parent or subsidiary
status is determined within the foregoing definition.
(b)
Award
means a Stock Award or a Performance Cash Award.
(c)
Award Agreement means a written agreement between the Company and a Participant
evidencing the terms and conditions of an Award.
(d)
Board
means the Board of Directors of the Company.
(e)
Capital Stock means each and every class of common stock of the Company, regardless
of the number of votes per share.
(f)
Capitalization Adjustment means any change that is made in, or other events that occur
with respect to, the Common Stock subject to the Plan or subject to any Stock
Award after the Adoption Date without the receipt of consideration by the
Company through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, large
nonrecurring cash dividend, stock split, reverse stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or any similar equity restructuring transaction, as that term is used
in Statement of Financial Accounting Standards Board Accounting Standards
Codification Topic 718 (or any successor thereto). Notwithstanding the
foregoing, the conversion of any convertible securities of the Company will not
be treated as a Capitalization Adjustment.
(g)
Cause shall have the meaning ascribed to such term in any written agreement
between the Participant and the Company defining such term and, in the absence
of such agreement, such term means, with respect to a Participant, the
occurrence of any of the following events: (i) such Participants commission of
any felony or any crime involving fraud, dishonesty or moral turpitude under the
laws of the United States or any state thereof; (ii) such Participants
attempted commission of, or participation in, a fraud or act of dishonesty
against the Company; (iii) such Participants intentional, material violation of
any contract or agreement between the Participant and the Company or of any
statutory duty owed to the Company; (iv) such Participants unauthorized use or
disclosure of the Companys confidential information or trade secrets; or (v)
such Participants gross misconduct. The determination that a termination of the
Participants Continuous Service is either for Cause or without Cause shall be
made by the Company, in its sole discretion. Any determination by the Company
that the Continuous Service of a Participant was terminated with or without
Cause for the purposes of outstanding Awards held by such Participant shall have
no effect upon any determination of the rights or obligations of the Company or
such Participant for any other purpose.
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(h)
Change in Control means the occurrence, in a single transaction or in a series of related
transactions, of any one or more of the following events:
(i) any
Exchange Act Person becomes the Owner, directly or indirectly, of securities of
the Company representing more than 50% of the combined voting power of the
Companys then outstanding securities other than by virtue of a merger,
consolidation or similar transaction. Notwithstanding the foregoing, a Change in
Control will not be deemed to occur (A) on account of the acquisition of
securities of the Company directly from the Company; (B) on account of the
acquisition of securities of the Company by an investor, any affiliate thereof
or any other Exchange Act Person that acquires the Companys securities in a
transaction or series of related transactions the primary purpose of which is to
obtain financing for the Company through the issuance of equity securities; or
(C) solely because the level of Ownership held by any Exchange Act Person (the
Subject
Person) exceeds the designated
percentage threshold of the outstanding voting securities as a result of a
repurchase or other acquisition of voting securities by the Company reducing the
number of shares outstanding, provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the acquisition of
voting securities by the Company, and after such share acquisition, the Subject
Person becomes the Owner of any additional voting securities that, assuming the
repurchase or other acquisition had not occurred, increases the percentage of
the then outstanding voting securities Owned by the Subject Person over the
designated percentage threshold, then a Change in Control will be deemed to
occur;
(ii) there
is consummated a merger, consolidation or similar transaction involving
(directly or indirectly) the Company and, immediately after the consummation of
such merger, consolidation or similar transaction, the shareholders of the
Company immediately prior thereto do not Own, directly or indirectly, either (A)
outstanding voting securities representing more than 50% of the combined
outstanding voting power of the surviving Entity in such merger, consolidation
or similar transaction or (B) more than 50% of the combined outstanding voting
power of the parent of the surviving Entity in such merger, consolidation or
similar transaction, in each case in substantially the same proportions as their
Ownership of the outstanding voting securities of the Company immediately prior
to such transaction;
(iii) there
is consummated a sale, lease, exclusive license or other disposition of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, other than a sale, lease, license or other disposition of all or
substantially all of the consolidated assets of the Company and its Subsidiaries
to an Entity, more than 50% of the combined voting power of the voting
securities of which are Owned by shareholders of the Company in substantially
the same proportions as their Ownership of the outstanding voting securities of
the Company immediately prior to such sale, lease, license or other
disposition;
(iv) the
complete dissolution or liquidation of the Company, except for a liquidation
into a parent corporation;
(v)
individuals who, on the date the Plan is adopted by the Board, are members of
the Board (the Incumbent
Board) cease for any reason to
constitute at least a majority of the members of the Board; provided, however, that if
the appointment or election (or nomination for election) of any new Board member
was approved or recommended by a majority vote of the members of the Incumbent
Board then still in office, such new member will, for purposes of this Plan, be
considered as a member of the Incumbent Board.
Notwithstanding the foregoing definition
or any other provision of the Plan, the term Change in Control will not include
a sale of assets, merger or other transaction effected exclusively for the
purpose of changing the domicile of the Company and the definition of Change in
Control (or any analogous term) in an individual written agreement between the
Company or any Affiliate and the Participant will supersede the foregoing
definition with respect to Awards subject to such agreement; provided, however, that if
no definition of Change in Control or any analogous term is set forth in such an
individual written agreement, the foregoing definition will apply.
If required for compliance with Section
409A of the Code, in no event will an event be deemed a Change in Control if
such event is not also a change in the ownership of the Company, a change in
the effective control of the Company or a change in the ownership of a
substantial portion of the assets of the Company, each as determined under
Treasury Regulations Section 1.409A-3(i)(5) (without regard to any alternative
definition thereunder).
(i)
Code means the Internal Revenue Code of 1986, as amended,
including any applicable regulations and guidance thereunder.
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(j)
Committee means a committee of one or more Directors to whom authority
has been delegated by the Board in accordance with Section 2(c).
(k)
Common Stock means the common stock of the Company, having one vote per
share.
(l)
Company means BioMarin Pharmaceutical Inc..
(m)
Consultant means any person, including an advisor, who is (i) engaged
by the Company or an Affiliate to render consulting or advisory services and is
compensated for such services, or (ii) serving as a member of the board of
directors of an Affiliate and is compensated for such services. However, service
solely as a Director, or payment of a fee for such service, will not cause a
Director to be considered a Consultant for purposes of the
Plan. Notwithstanding the foregoing, a person is treated as a Consultant under
this Plan only if a Form S-8 Registration Statement under the Securities Act is
available to register either the offer or the sale of the Companys securities
to such person.
(n)
Continuous
Service means that the
Participants service with the Company or an Affiliate, whether as an Employee,
Director or Consultant, is not interrupted or terminated. A change in the
capacity in which the Participant renders service to the Company or an Affiliate
as an Employee, Consultant or Director or a change in the entity for which the
Participant renders such service, provided that there is no interruption or
termination of the Participants service with the Company or an Affiliate, will
not terminate a Participants Continuous Service; provided, however, that if the Entity for
which a Participant is rendering services ceases to qualify as an Affiliate, as
determined by the Board, in its sole discretion, such Participants Continuous
Service will be considered to have terminated on the date such Entity ceases to
qualify as an Affiliate. To the extent permitted by law, the Board or the chief
executive officer of the Company, in that partys sole discretion, may determine
whether Continuous Service will be considered interrupted in the case of (i) any
leave of absence approved by the Board or chief executive officer, including
sick leave, military leave or any other personal leave, or (ii) transfers
between the Company, an Affiliate, or their successors. Notwithstanding the
foregoing, a leave of absence will be treated as Continuous Service for purposes
of vesting in an Award only to such extent as may be provided in the Companys
leave of absence policy, in the written terms of any leave of absence agreement
or policy applicable to the Participant, or as otherwise required by law.
(o)
Corporate
Transaction means the consummation,
in a single transaction or in a series of related transactions, of any one or
more of the following events:
(i) a
sale or other
disposition of all or substantially all, as determined by the Board, in its sole
discretion, of the consolidated assets of the Company and its
Subsidiaries;
(ii) a sale
or other disposition of more than 50% of the outstanding securities of the
Company;
(iii) a
merger, consolidation or similar transaction following which the Company is not the surviving
corporation; or
(iv) a
merger, consolidation or similar transaction following which the Company is the
surviving corporation but the shares of Common Stock outstanding immediately
preceding the merger, consolidation or similar transaction are converted or
exchanged by virtue of the merger, consolidation or similar transaction into
other property, whether in the form of securities, cash or otherwise.
If required for compliance with Section
409A of the Code, in no event will an event be deemed a Corporate Transaction if
such event is not also a change in the ownership of the Company, a change in
the effective control of the Company or a change in the ownership of a
substantial portion of the assets of the Company, each as determined under
Treasury Regulations Section 1.409A-3(i)(5) (without regard to any alternative
definition thereunder).
(p)
Covered
Employee will have the meaning
provided in Section 162(m)(3) of the Code.
(q)
Director means a member of the Board.
(r)
Disability means, with respect to a Participant, the inability of such
Participant to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for a continuous
period of not less than 12 months, as provided in Sections 22(e)(3) and 409A(a)
(2)(c)(i) of the Code, and will be determined by the Board on the basis of such
medical evidence as the Board deems warranted under the
circumstances.
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(s)
Dissolution means when the Company, after having executed a certificate
of dissolution with the State of Delaware (or other applicable state), has
completely wound up its affairs. Conversion of the Company into a Limited
Liability Company (or any other pass-through entity) will not be considered a
Dissolution for purposes of the Plan.
(t)
Effective
Date means the date of the Company
shareholders approve this Plan, which is the date of the annual meeting of
shareholders of the Company held on June 6, 2017, provided this Plan is approved
by the Companys shareholders at such meeting.
(u)
Employee means any person employed by the Company or an Affiliate.
However, service solely as a Director, or payment of a fee for such services,
will not cause a Director to be considered an Employee for purposes of the
Plan.
(v)
Entity means a corporation, partnership, limited liability company
or other entity.
(w)
Exchange Act means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
(x)
Exchange Act
Person means any natural person, Entity or
group (within the meaning of Section 13(d) or 14(d) of the Exchange Act),
except that Exchange Act Person will not include (i) the Company or any
Subsidiary of the Company, (ii) any employee benefit plan of the Company or any
Subsidiary of the Company or any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any Subsidiary of the Company,
(iii) an underwriter temporarily holding securities pursuant to a registered
public offering of such securities, (iv) an Entity Owned, directly or
indirectly, by the shareholders of the Company in substantially the same
proportions as their Ownership of stock of the Company; or (v) any natural
person, Entity or group (within the meaning of Section 13(d) or 14(d) of the
Exchange Act) that, as of the Effective Date, is the Owner, directly or
indirectly, of securities of the Company representing more than 50% of the
combined voting power of the Companys then outstanding securities.
(y)
Fair Market
Value means, as of any date, the
value of the Common Stock determined as follows:
(i) If the
Common Stock is listed on any established stock exchange or traded on any
established market, the Fair Market Value of a share of Common Stock will be,
unless otherwise determined by the Board, the closing sales price for such stock
as quoted on such exchange or market (or the exchange or market with the
greatest volume of trading in the Common Stock) on the date of determination, as
reported in a source the Board deems reliable.
(ii) Unless
otherwise provided by the Board, if there is no closing sales price for the
Common Stock on the date of determination, then the Fair Market Value will be
the closing selling price on the last preceding date for which such quotation
exists.
(iii) In
the absence of such markets for the Common Stock, the Fair Market Value will be
determined by the Board in good faith and in a manner that complies with
Sections 409A and 422 of the Code.
(z)
Incentive Stock
Option means an option granted
pursuant to Section 5 of the Plan that is intended to be, and qualifies as, an
incentive stock option within the meaning of Section 422 of the
Code.
(aa)
Non-Employee
Director means a Director who either (i) is not a
current employee or officer of the Company or an Affiliate, does not receive
compensation, either directly or indirectly, from the Company or an Affiliate
for services rendered as a consultant or in any capacity other than as a
Director (except for an amount as to which disclosure would not be required
under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act
(Regulation
S-K)), does not possess an interest
in any other transaction for which disclosure would be required under Item
404(a) of Regulation S-K, and is not engaged in a business relationship for
which disclosure would be required pursuant to Item 404(b) of Regulation S-K; or
(ii) is otherwise considered a non-employee director for purposes of Rule
16b-3.
(bb)
Nonstatutory Stock
Option means any Option granted
pursuant to Section 5 of the Plan that does not qualify as an Incentive Stock
Option.
(cc)
Officer means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act.
(dd) Option means an Incentive Stock
Option or a Nonstatutory Stock Option to purchase shares of Common Stock granted
pursuant to the Plan.
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(ee)
Option
Agreement means a written agreement
between the Company and an Optionholder evidencing the terms and conditions of
an Option grant. Each Option Agreement will be subject to the terms and
conditions of the Plan.
(ff)
Optionholder means a person to whom an Option is granted pursuant to the
Plan or, if applicable, such other person who holds an outstanding
Option.
(gg)
Other Stock
Award means an award based in whole
or in part by reference to the Common Stock which is granted pursuant to the
terms and conditions of Section 6(d).
(hh)
Other Stock Award
Agreement means a written agreement between the
Company and a holder of an Other Stock Award evidencing the terms and conditions
of an Other Stock Award grant. Each Other Stock Award Agreement will be subject
to the terms and conditions of the Plan.
(ii)
Outside
Director means a Director who
either (i) is not a current employee of the Company or an affiliated
corporation (within the meaning of Treasury Regulations promulgated under
Section 162(m) of the Code), is not a former employee of the Company or an
affiliated corporation who receives compensation for prior services (other
than benefits under a tax-qualified retirement plan) during the taxable year,
has not been an officer of the Company or an affiliated corporation, and does
not receive remuneration from the Company or an affiliated corporation, either
directly or indirectly, in any capacity other than as a Director, or (ii) is
otherwise considered an outside director for purposes of Section 162(m) of the
Code.
(jj)
Own, Owned, Owner, Ownership means a
person or Entity will be deemed to Own, to have Owned, to be the Owner of,
or to have acquired Ownership of securities if such person or Entity, directly
or indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has or shares voting power, which includes the power to vote or to
direct the voting, with respect to such securities.
(kk)
Participant means a person to whom an Award is granted pursuant to the
Plan or, if applicable, such other person who holds an outstanding Stock
Award.
(ll)
Performance Cash
Award means an award of cash
granted pursuant to the terms and conditions of Section 6(c)(ii).
(mm)
Performance
Criteria means the one or more
criteria that the Committee (or, to the extent that an Award is not intended to
qualify as performance-based compensation under Section 162(m) of the Code,
the Board or the Committee) will select for purposes of establishing the
Performance Goals for a Performance Period. The Performance Criteria that will
be used to establish such Performance Goals may be based on any one of, or
combination of, the following as determined by the Committee (or Board, if
applicable): (i) earnings (including earnings per share and net earnings); (ii)
earnings before interest, taxes and depreciation; (iii) earnings before
interest, taxes, depreciation and amortization; (iv) earnings before interest,
taxes, depreciation, amortization and legal settlements; (v) earnings before
interest, taxes, depreciation, amortization, legal settlements and other income
(expense); (vi) earnings before interest, taxes, depreciation, amortization,
legal settlements, other income (expense) and stock-based compensation; (vii)
earnings before interest, taxes, depreciation, amortization, legal settlements,
other income (expense), stock-based compensation and changes in deferred
revenue; (viii) earnings before interest, taxes, depreciation, amortization,
legal settlements, other income (expense), stock-based compensation, other
non-cash expenses and changes in deferred revenue; (ix) total shareholder
return; (x) return on equity or average shareholders equity; (xi) return on
assets, investment, or capital employed; (xii) stock price; (xiii) margin
(including gross margin); (xiv) income (before or after taxes); (xv) operating
income; (xvi) operating income after taxes; (xvii) pre-tax profit; (xviii)
operating cash flow; (xix) sales or revenue targets; (xx) increases in revenue
or product revenue; (xxi) expenses and cost reduction goals; (xxii) improvement
in or attainment of working capital levels; (xxiii) economic value added (or an
equivalent metric); (xxiv) market share; (xxv) cash flow; (xxvi) cash flow per
share; (xxvii) cash balance; (xxviii) cash burn; (xxix) cash collections; (xxx)
share price performance; (xxxi) debt reduction; (xxxii) implementation or
completion of projects or processes (including, without limitation, clinical
trial initiation, clinical trial enrollment and dates, clinical trial results,
regulatory filing submissions, regulatory filing acceptances, regulatory or
advisory committee interactions, regulatory approvals, and product supply);
(xxxiii) shareholders equity; (xxxiv) capital expenditures; (xxxv) debt levels;
(xxxvi) operating profit or net operating profit; (xxxvii) workforce diversity;
(xxxviii) growth of net income or operating income; (xxxix) billings; (xl)
bookings; (xli) employee retention; (xlii) initiation of studies by specific
dates; (xliii) budget management; (xliv) submission to, or approval by, a
regulatory body (including, but not limited to the U.S. Food and Drug
Administration) of an applicable filing or a product; (xlv) regulatory
milestones; (xlvi) progress of internal research or development programs;
(xlvii) acquisition of new customers; (xlviii) customer retention and/or repeat
order rate; (xlix) improvements in sample and test processing times; (l)
progress of partnered programs; (li) partner satisfaction; (lii) timely
completion of clinical
Table of Contents
trials; (liii) submission of 510(k)s or
pre-market approvals and other regulatory achievements; (liv) milestones related
to research development (including, but not limited to, preclinical and clinical
studies), product development and manufacturing; (lv) expansion of sales in
additional geographies or markets; (lvi) research progress, including the
development of programs; (lvii) strategic partnerships or transactions
(including in-licensing and out-licensing of intellectual property; and (lviii)
and to the extent that an Award
is not intended to comply with Section 162(m)
of the Code, other measures of performance selected by the Board or the
Committee.
(nn)
Performance
Goals means, for a
Performance Period, the one or more goals established by the Committee (or, to
the extent that an Award is not intended to qualify as performance-based
compensation under Section 162(m) of the Code, the Board or the Committee) for
the Performance Period based upon the Performance Criteria. Performance Goals
may be based on a Company-wide basis, with respect to one or more business
units, divisions, Affiliates, or business segments, and in either absolute terms
or relative to the performance of one or more comparable companies or the
performance of one or more relevant indices. The Committee (or, to the extent
that an Award is not intended to qualify as performance-based compensation
under Section 162(m) of the Code, the Board or the Committee) is authorized to
make appropriate adjustments in the method of calculating the attainment of
Performance Goals for a Performance Period as follows; provided, however, that to
the extent that an Award is intended to qualify as performance-based
compensation under Section 162(m) of the Code, any such adjustment may be made
only if such adjustment is objectively determinable and specified in the Award
Agreement at the time the Award is granted or in such other document setting
forth the Performance Goals for the Award at the time the Performance Goals are
established: (1) to exclude restructuring and/or other nonrecurring charges; (2)
to exclude exchange rate effects; (3) to exclude the effects of changes to
generally accepted accounting principles; (4) to exclude the effects of any
statutory adjustments to corporate tax rates; (5) to exclude the effects of any
items that are unusual in nature or occur infrequently as determined under
generally accepted accounting principles; (6) to exclude the dilutive effects of
acquisitions or joint ventures; (7) to assume that any business divested by the
Company achieved performance objectives at targeted levels during the balance of
a Performance Period following such divestiture; (8) to exclude the effect of
any change in the outstanding shares of common stock of the Company by reason of
any stock dividend or split, stock repurchase, reorganization, recapitalization,
merger, consolidation, spin-off, combination or exchange of shares or other
similar corporate change, or any distributions to common shareholders other than
regular cash dividends; (9) to exclude the effects of stock based compensation
and the award of bonuses under the Companys bonus plans; (10) to exclude costs
incurred in connection with potential acquisitions or divestitures that are
required to be expensed under generally accepted accounting principles; (11) to
exclude the goodwill and intangible asset impairment charges that are required
to be recorded under generally accepted accounting principles; (12) to exclude
the effects of the timing of acceptance for review and/or approval of
submissions to the U.S. Food and Drug Administration or any other regulatory
body; and (13) to the extent that an Award is not intended to qualify as
performance-based compensation under Section 162(m) of the Code, to make other
appropriate adjustments selected by the Board or the Committee.
(oo)
Performance
Period means the period of time
selected by the Committee (or, to the extent that an Award is not intended to
qualify as performance-based compensation under Section 162(m) of the Code,
the Board or the Committee) over which the attainment of one or more Performance
Goals will be measured for the purpose of determining a Participants right to
and the payment of a Stock Award or a Performance Cash Award. Performance
Periods may be of varying and overlapping duration, at the sole discretion of
the Committee (or Board, if applicable).
(pp)
Performance Stock
Award means a Stock Award granted
under the terms and conditions of Section 6(c)(i).
(qq)
Plan means this BioMarin Pharmaceutical Inc. 2017 Equity
Incentive Plan.
(rr)
Restricted Stock
Award means an award of shares of
Common Stock which is granted pursuant to the terms and conditions of Section
6(a).
(ss)
Restricted Stock Award
Agreement means a written agreement
between the Company and a holder of a Restricted Stock Award evidencing the
terms and conditions of a Restricted Stock Award grant. Each Restricted Stock
Award Agreement will be subject to the terms and conditions of the
Plan.
(tt)
Restricted Stock Unit
Award means a right to receive shares of
Common Stock which is granted pursuant to the terms and conditions of Section
6(b).
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2017 Proxy
Statement |
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(uu)
Restricted Stock Unit Award
Agreement means a written agreement between the
Company and a holder of a Restricted Stock Unit Award evidencing the terms and
conditions of a Restricted Stock Unit Award grant. Each Restricted Stock Unit
Award Agreement will be subject to the terms and conditions of the
Plan.
(vv)
Rule 16b-3 means Rule 16b-3 promulgated under the Exchange Act or any
successor to Rule 16b-3, as in effect from time to time.
(ww)
Securities
Act means the Securities Act of
1933, as amended.
(xx)
Stock Appreciation
Right or SAR means a right to receive
the appreciation on Common Stock that is granted pursuant to the terms and
conditions of Section 5.
(yy)
Stock Appreciation Right
Agreement means a written agreement
between the Company and a holder of a Stock Appreciation Right evidencing the
terms and conditions of a Stock Appreciation Right grant. Each Stock
Appreciation Right Agreement will be subject to the terms and conditions of the
Plan.
(zz)
Stock Award means any right to receive Common Stock granted under the
Plan, including an Incentive Stock Option, a Nonstatutory Stock Option, a
Restricted Stock Award, a Restricted Stock Unit Award, a Stock Appreciation
Right, a Performance Stock Award or any Other Stock Award.
(aaa) Stock Award
Agreement means a written agreement
between the Company and a Participant evidencing the terms and conditions of a
Stock Award grant. Each Stock Award Agreement will be subject to the terms and
conditions of the Plan.
(bbb) Subsidiary means,
with respect to the Company, (i) any corporation of which more than 50% of the
outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether, at the
time, stock of any other class or classes of such corporation will have or might
have voting power by reason of the happening of any contingency) is at the time,
directly or indirectly, Owned by the Company, and (ii) any partnership, limited
liability company or other entity in which the Company has a direct or indirect
interest (whether in the form of voting or participation in profits or capital
contribution) of more than 50%.
(ccc)
Substitute
Award means an Award issued in
connection with a merger or acquisition in connection with the assumption of, or
substitution for, an existing award.
(ddd)
Ten Percent
Shareholder means a person who Owns
(or is deemed to Own pursuant to Section 424(d) of the Code) stock possessing
more than 10% of the total combined voting power of all classes of stock of the
Company or any Affiliate.
(eee)
Transaction means a Corporate Transaction or a Change in
Control.
Table of Contents
Certificate of Amendment of Amended and
Restated Certificate of Incorporation of BioMarin Pharmaceutical Inc.
BioMarin Pharmaceutical Inc., a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the Corporation), hereby
certifies that:
1. |
On March 22, 2017, the Board of
Directors of the Corporation duly adopted resolutions approving the
following amendments to the Corporations Amended and Restated Certificate
of Incorporation, as amended (the Certificate of Incorporation), declaring said amendment to be advisable and
providing for the consideration of such amendment at the Corporations
annual meeting of stockholders. |
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2. |
On June 6, 2017, the
Corporations annual meeting of stockholders was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware, at which meeting the necessary number of shares
required by statute were voted in favor of the amendments. |
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3. |
Said amendments were duly adopted
in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware. |
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4. |
Article IV of the Certificate of
Incorporation is hereby amended and restated in its entirety to read as
follows: |
The Corporation is hereby authorized to
issue two classes of stock to be designated, respectively, Common Stock and
Preferred Stock. The number of shares of Common Stock that the Corporation is
authorized to issue is Five Hundred Million (500,000,000) shares, par value
$0.001 per share (the Common
Stock). The number of shares of
Preferred Stock that the Corporation is authorized to issue is One Million
(1,000,000) shares, par value $0.001 per share (the Preferred Stock).
Shares of Common Stock may be issued from
time to time for such consideration as the Board of Directors may determine
pursuant to a resolution or resolutions providing for such issue duly adopted by
the Board of Directors (authority to do so being hereby expressly vested in the
Board). Shares of Preferred Stock may be issued from time to time in one or more
series pursuant to a resolution or resolutions providing for such issue duly
adopted by the Board of Directors (authority to do so being hereby expressly
vested in the Board). The Board of Directors is further authorized to determine
or alter the rights, preferences, privileges and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock and to fix the number
of shares of any series of Preferred Stock and the designation of any such
series of Preferred Stock. The Board of Directors, within the limits of and
restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series, may increase or
decrease (but not below the number of shares in any such series then
outstanding) the number of shares of any series subsequent to the issue of
shares of that series.
The Corporation shall from time to time in
accordance with the laws of the State of Delaware increase the authorized amount
of its Common Stock if at any time the number of shares of Common Stock
remaining unissued and available for issuance shall not be sufficient to permit
conversion of the Preferred Stock.
Except as otherwise required by law or
herein, the holder of each share of Common Stock issued and outstanding shall
have one vote with respect to such share and the holder of each share of
Preferred Stock shall be entitled with respect to such share to a number of
votes equal to the number of shares of Common Stock into which such share of
Preferred Stock could be converted at the record date for determination of the
stockholders entitled to vote on such matters, or, if no such record date is
established, at the date such vote is taken, such votes to be counted together
with all other shares of stock of the Corporation having general voting power
and not separately as a class (except as required by the General Corporation Law
of Delaware). Holders of Common Stock and Preferred Stock shall be entitled to
notice of any stockholders meeting in accordance with the Bylaws of the
Corporation. Fractional votes by the holders of Preferred Stock shall not,
however, be permitted and any fractional voting rights shall (after aggregating
all shares into which shares of Preferred Stock held by each holder could be
converted) be rounded to the nearest whole number.
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2017 Proxy
Statement |
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5. |
Article X of the Certificate of
Incorporation is hereby amended and restated in its entirety to read as
follows: |
No action shall be taken by the
stockholders of the Corporation except at an annual meeting of the stockholders
or special meeting of the stockholders called in accordance with the Bylaws, and
no action shall be taken by the stockholders by written consent. The affirmative
vote of sixty-six and two-thirds percent (66 2/3%) of the then issued and
outstanding voting securities of the Corporation, voting together as a single
class, shall be required to amend, repeal or modify the provisions of this
Article X of this Amended and Restated Certificate of Incorporation or Sections
2.3 (Special Meeting), or 2.10 (Stockholder Action by Written Consent Without a
Meeting) of the Corporations Bylaws.
6. |
All other provisions of the
Certificate of Incorporation shall remain in full force and
effect. |
* * *
BioMarin Pharmaceutical Inc. has caused
this Certificate of Amendment to be executed by its authorized officer on this
[] day of June, 2017.
By: |
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Name: |
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G. Eric Davis |
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Title: |
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Executive Vice President, General
Counsel |
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and Secretary |
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2017
BioMarins 20 Year Anniversary
Two Decades of
Innovation and Productivity |
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$1.12 billion total revenue for FY 2016 |
2,200+ global employees |
14
million units of product manufactured in 2016 |
5 approved products |
3rd year
in a row voted a top 10 most innovative Company, according to
Forbes |
5 products in clinical development |
27 congress presentations around the globe in 2016 |
68 global markets served |
20 years of scientific innovation |
117 abstracts accepted at global medical meetings in 2016 |
1200+% increase in total revenue from 2006 to 2016 |
5 years
on average from IND to approval for all marketed products |
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Table of Contents
BIOMARIN PHARMACEUTICAL
INC.
105 DIGITAL DRIVE
NOVATO, CA 94949
ATTN: G.
ERIC DAVIS, EVP & GENERAL COUNSEL
VOTE BY INTERNET -
www.proxyvote.com
Use the Internet to
transmit your voting instructions and for electronic delivery of information up
until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date.
Have your proxy card in hand when you access the web site and follow the
instructions to obtain your records and to create an electronic voting
instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY
MATERIALS
If you would like to reduce the
costs incurred by our company in mailing proxy materials, you can consent to
receiving all future proxy statements, proxy cards and annual reports
electronically via e-mail or the Internet. To sign up for electronic delivery,
please follow the instructions above to vote using the Internet and, when
prompted, indicate that you agree to receive or access proxy materials
electronically in future years.
VOTE BY PHONE -
1-800-690-6903
Use any touch-tone
telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time
the day before the cut-off date or meeting date. Have your proxy card in hand
when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the
postage-paid envelope we have provided or return it to Vote Processing, c/o
Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
TO VOTE, MARK BLOCKS BELOW
IN BLUE OR BLACK INK AS FOLLOWS: |
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KEEP THIS PORTION FOR YOUR RECORDS |
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DETACH AND RETURN THIS PORTION
ONLY |
THIS PROXY CARD IS VALID ONLY
WHEN SIGNED AND DATED. |
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For |
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Withhold |
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For All |
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All |
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All |
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Except |
The Board of Directors
recommends you vote FOR the following: |
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To withhold authority to vote for any
individual nominee(s), mark For All Except and write the number(s) of
the nominee(s) on the line below. |
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1. |
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Election of Directors |
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Nominees |
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01 |
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Jean-Jacques Bienaimé |
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02 |
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Willard Dere |
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Michael Grey |
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Elaine J. Heron |
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05 |
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V. Bryan Lawlis |
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Alan J. Lewis |
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07 |
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Richard A. Meier |
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08 |
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David Pyott |
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09 |
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Dennis J. Slamon |
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The Board
of Directors recommends you vote FOR the following proposal: |
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For |
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Against |
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Abstain |
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2 |
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To ratify the selection of KPMG LLP as the
independent registered public accounting firm for BioMarin for the fiscal
year ending December 31, 2017. |
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☐ |
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The Board of
Directors recommends you vote 1 YEAR on the following
proposal: |
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1 year |
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2 years |
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3 years |
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Abstain |
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3 |
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To approve, on an advisory basis, the
frequency of the stockholders' approval, on an advisory basis, of the
compensation of the Company's Named Executive Officers as disclosed in the
Proxy Statement. |
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The Board of
Directors recommends you vote FOR proposals 4, 5 and 6. |
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For |
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Against |
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Abstain |
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4 |
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To approve, on an advisory basis, the
compensation of the Company's Named Executive Officers as disclosed in the
Proxy Statement. |
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☐ |
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5 |
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To approve the 2017 Equity Incentive
Plan. |
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☐ |
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Please sign exactly as your name(s)
appear(s) hereon. When signing as attorney, executor, administrator, or
other fiduciary, please give full title as such. Joint owners should each
sign personally. All holders must sign. If a corporation or partnership,
please sign in full corporate or partnership name, by authorized
officer. |
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For |
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Against |
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Abstain |
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To approve
amendments to BioMarin's Amended and Restated Certificate of
Incorporation, as amended, to (i) increase the total number of authorized
shares of common stock from 250,000,000 shares to 500,000,000 shares, and
(ii) make certain minor administrative changes. |
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NOTE: Your proxy holder will
also vote on any other business properly brought before the Annual
Meeting. |
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Signature
[PLEASE SIGN WITHIN BOX] |
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Signature (Joint
Owners) |
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Table of Contents
Important Notice Regarding the Availability of Proxy
Materials for the Annual Meeting: The related Notice & Proxy Statement,
Form 10-K, and CEO Stockholder Letter are available at www.proxyvote.com |
BIOMARIN PHARMACEUTICAL
INC.
Annual Meeting of Stockholders
June 6, 2017 9:00 AM
PDT
This proxy is solicited by the
Board of Directors
The undersigned hereby appoints
Jean-Jacques Bienaimé and G. Eric Davis, and each of them, with power to act
without the other and with power of substitution, as proxies and
attorneys-in-fact and hereby authorizes them to represent and vote, as provided
on the other side, all the shares of BioMarin Pharmaceutical Inc. Common Stock,
that the undersigned is entitled to vote, and in their discretion, to vote upon
such other business as may properly come before the Annual Meeting of
Stockholders of the company to be held on June 6, 2017 or at any adjournment or
postponement thereof, with all powers which the undersigned would possess if
present at the Annual Meeting of Stockholders.
When properly executed, this proxy
will be voted in the manner directed herein, or if no such direction is made, it
will be voted in accordance with the Board of Directors'
recommendations.
This proxy is governed by the laws of
the State of Delaware.
(PLEASE DATE AND SIGN ON REVERSE
SIDE)
This regulatory filing also includes additional resources:
bmrn_courtesy-pdf.pdf
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