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
Filed by the Registrant
þ
Filed by a Party other than the Registrant
o
Check the appropriate box:
o
|
|
Preliminary Proxy Statement
|
|
o
|
|
Confidential, for Use of the Commission Only (as permitted by Rule 14a-
6(e)(2)
)
|
|
þ
|
|
Definitive Proxy Statement
|
|
o
|
|
Definitive Additional Materials
|
|
o
|
|
Soliciting Material under Rule 14a-12
|
Inhibitex, Inc.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
þ
|
|
No fee required.
|
|
o
|
|
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
|
|
(1)
|
|
Title of each class of securities to which transaction applies:
|
|
|
|
|
|
|
|
(2)
|
|
Aggregate number of securities to which transaction applies:
|
|
|
|
|
|
|
|
(3)
|
|
Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
|
|
|
|
|
|
|
|
(4)
|
|
Proposed maximum aggregate value of transaction:
|
|
|
|
|
|
|
|
(5)
|
|
Total fee paid:
|
|
|
|
|
|
o
|
|
Fee paid previously with preliminary materials.
|
|
o
|
|
Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing
by registration statement number, or the Form or Schedule and the
date of its filing.
|
|
(1)
|
|
Amount Previously Paid:
|
|
|
|
|
|
|
|
(2)
|
|
Form, Schedule or Registration Statement No.:
|
|
|
|
|
|
|
|
(3)
|
|
Filing Party:
|
|
|
|
|
|
|
|
(4)
|
|
Date Filed:
|
|
|
|
|
|
TABLE OF CONTENTS
INHIBITEX,
INC.
9005 Westside Parkway
Alpharetta, GA 30009
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
June 9, 2009
NOTICE IS HEREBY GIVEN that the 2009 Annual Meeting of
Stockholders of Inhibitex, Inc. (Inhibitex or the
Company), will be held at 8:30 a.m. local time
on June 9, 2009 at Inhibitexs corporate headquarters,
9005 Westside Parkway, Alpharetta, Georgia 30009 for the
following purposes:
1. To elect two Class II directors of the Company to
hold office until the 2012 Annual Meeting of Stockholders and
until the election and qualification of their respective
successors; and
2. To approve an amendment to the Companys Eighth
Amended and Restated Certificate of Incorporation to increase
the Companys authorized common stock, $0.001 par
value per share (the Common Stock), from
75,000,000 shares to 150,000,000 shares; and
3. To transact such other business as may properly come
before the meeting and any adjournment thereof.
Only holders of record of the Companys Common Stock at the
close of business on April 17, 2009 are entitled to notice
of, and to vote at, the meeting and any adjournment thereof.
Such stockholders may vote in person or by proxy.
ALL STOCKHOLDERS ARE CORDIALLY INVITED TO ATTEND THE MEETING
IN PERSON. HOWEVER, EVEN IF YOU PLAN TO ATTEND THE MEETING,
PLEASE FOLLOW THE INSTRUCTIONS FOR TELEPHONIC OR INTERNET
VOTING ON THE NOTICE OF AVAILABILITY OF PROXY MATERIALS, OR
PLEASE COMPLETE, SIGN, DATE AND RETURN THE ACCOMPANYING PROXY
CARD IN THE ENCLOSED ENVELOPE, SO THAT YOUR SHARES WILL BE VOTED
AT THE MEETING. NO POSTAGE IS REQUIRED IF MAILED IN THE UNITED
STATES.
By Order of the Board of Directors,
Russell H. Plumb
Chief Executive Officer and
Chief Financial Officer and Secretary
April 27, 2009
INHIBITEX,
INC.
9005 Westside Parkway
Alpharetta, GA 30009
PROXY
STATEMENT
This Proxy Statement is furnished in connection with the
solicitation by the Board of Directors (the Board or
the Board of Directors) of Inhibitex, Inc.
(Inhibitex or the Company) of proxies to
be voted at the Annual Meeting of Stockholders to be held on
June 9, 2009 (the Annual Meeting). The purposes
of the Annual Meeting are as follows:
1. To elect two Class II directors of Inhibitex, Inc.
to hold office until the 2012 Annual Meeting of Stockholders and
until the election and qualification of their respective
successors;
2. To approve an amendment to the Companys Eighth
Amended and Restated Certificate of Incorporation (the
Certificate of Incorporation) to increase the
Companys authorized common stock, $0.001 par value
per share (the Common Stock) from
75,000,000 shares to 150,000,000 shares; and
3. To transact such other business as may properly come
before the Annual Meeting and any adjournment thereof.
In accordance with rules and regulations recently adopted by the
Securities and Exchange Commission (the SEC),
instead of mailing a printed copy of the Companys proxy
materials, including its Annual Report, to each stockholder, the
Company may now furnish its proxy materials, including its
Annual Report, to its stockholders over the Internet. On or
about April 29, 2009, the Company will send electronically
a Notice of Availability of Proxy Materials to those
stockholders that have previously elected to receive their proxy
materials via
e-mail
and
will begin mailing the Notice of Availability of Proxy Materials
to all other stockholders. If you received the Notice of
Availability of Proxy Materials by
e-mail
or by
mail, you will not automatically receive a printed copy of the
Companys proxy materials or its annual report. Instead,
the Notice of Availability of Proxy Materials contains
instructions as to how stockholders can access, review and print
all of the information contained in the Companys proxy
materials, including its Annual Report. The Notice of
Availability of Proxy Materials also instructs stockholders as
to how to submit their vote on the matters contained in Proxy
Statement by internet, telephone, mail, or in person. If you
received the Notice of Availability of Proxy Materials and would
like to receive a printed copy of the Companys proxy
materials, including its Annual Report, you should follow the
instructions for requesting such materials included in the
Notice of Availability of Proxy Materials. The Notice of
Availability of Proxy Materials, Proxy Statement, Form of
Electronic Proxy Card and the Annual Report are available at
www.inhibitex.com
.
Stockholders
Entitled to Vote
Stockholders of record at the close of business on
April 17, 2009 (the Record Date) are entitled
to receive notice of the Annual Meeting and to vote their shares
held on that date. As of that date, 43,521,527 shares of
Common Stock were outstanding, each share being entitled to one
vote. Stockholders do not have cumulative voting rights.
Quorum
and Votes Required to Elect Directors and Adopt
Proposals
The holders of a majority of the issued and outstanding shares
of Common Stock of the Company entitled to vote at the meeting
must be represented in person or by proxy at the Annual Meeting
for there to be a quorum and for the meeting to be held.
Withheld votes, abstentions and broker non-votes will be counted
as present for purposes of determining whether a quorum is
present. If a quorum is present, the votes required to approve
the two proposals at the Annual Meeting are as follows:
Proposal 1.
The two nominees receiving
the highest number of affirmative votes will be elected as
directors. Withheld votes and broker non-votes will not have any
effect on the outcome of the vote for the election of
directors. Banks and brokers that have not received voting
instructions from their clients may vote their clients
shares for the election of directors, as this is a routine
proposal.
Proposal 2.
The affirmative vote of the
holders of the majority of the outstanding shares of stock
entitled to vote thereon is required to approve the amendment to
the Certificate of Incorporation. Abstentions and broker
non-votes will have the same effect as a vote against the
proposal to amend the Certificate of Incorporation. Banks and
brokers that have not received voting instructions from their
clients may not vote their clients shares for the proposed
amendment to the Certificate of Incorporation, as this is not a
routine proposal.
Voting of
Proxies
The Board solicits proxies to give each stockholder an
opportunity to vote on the matters scheduled to come before the
Annual Meeting and set forth in this Proxy Statement.
Stockholders are urged to carefully read the material in this
Proxy Statement, specify their choice on the matters by
submitting their vote by telephone or internet, or marking the
appropriate box on the enclosed proxy card, and then signing,
dating and returning the card in the enclosed, stamped envelope.
If a stockholder submits a proxy card but does not fill out the
voting instructions on the proxy card, the persons named as
proxies will vote the shares represented by such proxy:
(i) FOR the election as directors of the nominees of the
Board named below, (ii) FOR the amendment to the
Certificate of Incorporation described below, and (iii) in
the discretion of the persons named as proxies, on any other
proposal to properly come before the Annual Meeting, or any
adjournment thereof.
You may revoke your proxy at any time before it is voted by
written notice to the Secretary of the Company, by submission of
a proxy bearing a later date, or by casting a ballot at the
Annual Meeting.
PROPOSAL 1
ELECTION
OF DIRECTORS
The Companys Certificate of Incorporation provides for the
Board of Directors to be divided into three classes:
Class I, Class II and Class III, with the
directors distributed among the three classes so that, as nearly
as possible, each class consists of one-third of the total
number of directors, with each class consisting of directors
whose terms are to expire at successive annual meetings.
Currently, the Board of Directors consists of eight members. As
set forth in the Companys Certificate of Incorporation,
the terms of office of the members of the Board of Directors
are: Class I, whose term expires at the 2011 Annual Meeting
of Stockholders; Class II, whose term expires at the 2009
Annual Meeting of Stockholders; and Class III, whose term
expires at the 2010 Annual Meeting of Stockholders.
Robert A. Hamm, resigned from the Board effective as of
April 1, 2009. The Board appreciates and recognizes the
contributions and service that Mr. Hamm has provided to the
Company. The Board has determined that the number of directors
of the Company shall be reduced from nine to eight, and the
number of Class II directors will be reduced from three to
two.
The Board of Directors based on the recommendation of the
Nominating and Corporate Governance Committee has nominated
Gabriele M. Cerrone and Russell H. Plumb for election as
Class II directors of the Company. Each of the nominees is
an existing director of the Company.
Each of the nominees has consented to being named as a nominee
for director of the Company and has agreed to serve if elected.
If, for any reason, at the time of the election either of the
nominees should become unavailable to serve as a director, it is
intended that such proxy will be voted for the election, in such
nominees place, of a substitute nominee recommended by the
Board.
Set forth below is biographical information for each person
nominated and each person whose term of office as a director
will continue after the Annual Meeting.
2
NOMINEES
FOR DIRECTOR
CLASS II
(IF ELECTED, TERM EXPIRES 2012)
|
|
|
|
|
|
|
|
|
Name of Nominee
|
|
Age
|
|
Served as Director Since
|
|
Gabriele M. Cerrone
|
|
|
37
|
|
|
|
2007
|
|
Russell H. Plumb
|
|
|
50
|
|
|
|
2007
|
|
Gabriele Cerrone
has served as a director of Inhibitex
since September 2007. From March 1999 to January 2005,
Mr. Cerrone served as a Senior Vice President of
Investments of Oppenheimer & Co. Inc., a financial
services firm. Between May 2001 and May 2003, Mr. Cerrone
served on the board of directors of Siga Technologies, Inc.
Mr. Cerrone co-founded Xenomics, Inc., a molecular
diagnostic company, and served as Co-Chairman from July 2005
until November 2006. Mr. Cerrone also co-founded FermaVir
Pharmaceuticals and served as Chairman of the Board from August
2005 until September 2007. Mr. Cerrone is a co-founder of
Synergy Pharmaceuticals, Inc. as well as Callisto
Pharmaceuticals, Inc. and currently serves as Chairman of the
Board and a consultant to both publicly-held biopharmaceutical
companies. Mr. Cerrone is the managing partner of Panetta
Partners, Ltd., a Colorado limited partnership, that is a
private investor in both public and private venture capital in
the life sciences and technology arena as well as real estate.
Mr. Cerrone graduated from New York Universitys
Leonard N. Stern School of Business with a degree in Finance.
Russell H. Plumb
was appointed the President, Chief
Executive Officer and Chief Financial Officer of Inhibitex on
December 30, 2006 and served as Vice President, Finance and
Administration and Chief Financial Officer from August 2000
through December 2006. From December 1999 to July 2000,
Mr. Plumb served as Chief Financial Officer of Emory
Vision, a healthcare company. From 1994 to November 1999, he
served as Chief Financial Officer and Vice President, Finance of
Serologicals Corporation, a publicly-held biopharmaceutical
company. Mr. Plumb received both a Bachelor of Commerce and
a M.B.A. from the University of Toronto. Mr. Plumb has
received designations as a certified public accountant in
Michigan and Georgia.
DIRECTORS
WHOSE TERM OF OFFICE WILL CONTINUE AFTER THE ANNUAL
MEETING
(TERM EXPIRES AT THE 2010 ANNUAL MEETING OF STOCKHOLDERS)
|
|
|
|
|
|
|
|
|
Name of Director
|
|
Age
|
|
Served as Director Since
|
|
Michael A. Henos
|
|
|
59
|
|
|
|
1997
|
|
Marc L. Preminger, FSA, MAAA
|
|
|
59
|
|
|
|
2003
|
|
Christopher McGuigan, M.Sc., Ph.D.
|
|
|
50
|
|
|
|
2007
|
|
Michael A. Henos
has served as Chairman of the Board
since April 2001. Mr. Henos also served as Chairman of the
Board from July 1997 to January 2000. Since 1993, Mr. Henos
has served as Managing General Partner of Alliance Technology
Ventures, L.P., a venture capital firm. From 1991 to 2001,
Mr. Henos served as a General Partner of Aspen Ventures, a
venture capital partnership. He currently serves as Chairman of
the Board of Directors of AtheroGenics, Inc., and as a director
of Genoptix, Inc., a publicly-held biopharmaceutical company. He
is also a member of the Board of Directors of the following
privately-held biopharmaceutical companies: GlycoMimetics, Inc.
and Sensys Medical, Inc. Mr. Henos received a B.S. in
Economics and a M.B.A. in Finance from the University of
California, Los Angeles.
Marc L. Preminger, FSA, MAAA,
served in various
capacities with CIGNA Corporation, a healthcare insurance
company, from 1977 until his retirement in September 2002, the
most recent of which was Senior Vice President and Chief
Financial Officer of Cigna Healthcare. Mr. Preminger
received a B.A. in Economics from Lafayette College and a
Masters of Actuarial Science from Georgia State University.
Chris McGuigan, M.Sc., Ph.D.,
served as a member of
the Board of Directors of FermaVir from August 2005 until it was
acquired by Inhibitex in September 2007. Since 1995,
Dr. McGuigan has been Professor, Welsh School of Pharmacy,
Chairman of Departmental Research Committee and Director of
Research, Head of Medicinal Chemistry. He is also the Chemistry
Editor for Antiviral Chemistry and Chemotherapy, a member of the
Editorial Board for the Journal of Medicinal Chemistry and is
the immediate past President and a board member of the
International Society for Antiviral Research. Dr. McGuigan
received a B.S. and Ph.D. in Anticancer Drug Design from the
University of Birmingham.
3
CLASS I
(TERM EXPIRES AT THE 2011 ANNUAL MEETING OF
STOCKHOLDERS)
|
|
|
|
|
|
|
|
|
Name of Director
|
|
Age
|
|
Served as Director Since
|
|
M. James Barrett, Ph.D.
|
|
|
66
|
|
|
|
2002
|
|
Russell M. Medford, M.D., Ph.D.
|
|
|
54
|
|
|
|
1997
|
|
A. Keith Willard
|
|
|
68
|
|
|
|
2005
|
|
M. James Barrett, Ph.D.
has served as a general
partner of NEA Partners 10 Limited Partnership, the general
partner of New Enterprise Associates 10 Limited Partnership, a
venture capital fund, since August 2001. From January 1997 to
August 2001, he served as Chairman and Chief Executive Officer
of Sensors for Medicine and Science, Inc., a medical device
company, which he founded in 1997. He continues to serve as the
Chairman of its Board of Directors. Dr. Barrett also serves
on the Boards of Directors of two publicly-held
biopharmaceutical companies: Taragacept, Inc. and YM
Biosciences, Inc., and the Boards of several privately-held
biopharmaceutical companies. Dr. Barrett received a B.S. in
Chemistry from Boston College, a Ph.D. in Biochemistry from the
University of Tennessee and a M.B.A. from the University of
Santa Clara.
Russell M. Medford, M.D., Ph.D.
has served,
since April 1, 2009, as Chairmen and President of Salutria
Pharmaceuticals, Inc., a biopharmaceutical company. From 1995 to
April 1, 2009 Dr. Medford served as President, Chief
Executive Officer and Director of AtheroGenics, Inc., a
publicly-held pharmaceutical company. On September 15,
2008, an involuntary petition under Chapter 7 of the United
States Bankruptcy Code was filed against AtheroGenics, Inc. by
certain holders of its 4.5% Convertible Notes Due 2008 in
the United States Bankruptcy Court for the Northern district of
Georgia (the Bankruptcy Court). On October 6,
2008, AtheroGenics, Inc. consented to the bankruptcy filing and
moved in the Bankruptcy Court to convert the Chapter 7 case
to a case under Chapter 11 of the United States Bankruptcy
Code. Dr. Medford serves on the Biotechnology Industry
Organizations (BIO) Board of Directors and BIO
Emerging Companies Section Governing Body, and he served as
Chairman of the Georgia BioMedical Partnership from 2004 to 2007
and the Georgia Biotechnology Industry Organization Board of
Directors. Dr. Medford was an Associate Professor of
Medicine and Director of Molecular Cardiology at the Emory
University School of Medicine, and currently holds the
appointment of Adjunct Clinical Professor of Medicine.
Dr. Medford received a B.A. from Cornell University, and a
M.D. with Distinction and a Ph.D. in Molecular and Cell Biology
from the Albert Einstein College of Medicine.
A. Keith Willard
served from 1993 to 1999 as
Chairman and Chief Executive Officer of Zeneca, Inc., a
multinational pharmaceutical company. Prior to that, he served
in several capacities with ICI Canada, including President and a
member of its Board of Directors. He has been retired since
October 1999. He received a B.A. in Sociology from Concordia
University and is a graduate of the Advanced Executive
Management Institute at McGill University.
The Board recommends a vote FOR each of the nominees for
director.
CORPORATE
GOVERNANCE
Inhibitexs by-laws provide that the number of members of
the Board of Directors shall be determined from time to time by
resolution of the directors. Inhibitexs Board of Directors
should neither be too small to maintain the needed expertise and
independence, nor too large so as to be inefficient in
functioning. The general expectation is that the Board will
consist of between five and twelve directors, although
periodically the Board of Directors and the Nominating and
Corporate Governance Committee will review the appropriate size
and mix of the Board of Directors in light of Inhibitexs
needs.
Inhibitexs Board of Directors has determined that
Messrs. Henos, Preminger and Willard and Drs. Barrett,
Medford and McGuigan are independent under the standards of
independence applicable to companies traded on the NASDAQ
Capital Market (Nasdaq). In addition, as required by
Nasdaq, Inhibitexs Board of Directors has made a
subjective determination as to each independent director that no
relationships exists which, in the opinion of the Board of
Directors, would interfere with the exercise of independent
judgment in carrying out the responsibilities of a director.
However, members of the Board of Directors have recused
themselves, and the Board of Directors reserves the right to
recusal of any member of the Board of Directors from discussion
and deliberation in respect of any particular issue in which
there is perceived to be a conflict of interest.
4
During 2008, Inhibitexs Board of Directors met six times.
Each member of the Inhibitex Board of Directors attended more
than 75% of the aggregate number of meetings of the Board of
Directors and the committee or committees on which he served.
Directors are encouraged to attend Inhibitexs Annual
Meeting of Stockholders and all directors attended the 2008
Annual Meeting of Stockholders.
The committees of Inhibitexs Board of Directors consist of
an Audit Committee, a Compensation Committee and a Nominating
and Corporate Governance Committee, each of which has the
composition and responsibilities as described below. The Board
may also establish other committees from time to time to assist
in the discharge of its responsibilities.
Audit Committee.
The Audit Committee oversees
Inhibitexs corporate accounting and financial reporting.
Among other things, the Audit Committee determines the
engagement of and approves fees paid to the Companys
independent registered public accounting firm; monitors the
qualifications, independence activities and performance of the
Companys independent registered public accounting firm;
approves the retention of the Companys independent
registered public accounting firm to perform any proposed and
permissible non-audit services; reviews the Companys
financial statements and critical accounting estimates; and
discusses with management and the Companys independent
registered public accounting firm the results of the annual
audit and the reviews of Inhibitexs quarterly financial
statements. The Audit Committee also reviews the effectiveness
of internal controls and the adequacy of Inhibitexs
disclosure controls and procedures. In addition, the Audit
Committee maintains procedures for the receipt of employee
complaints and submissions of concerns regarding accounting or
auditing matters. The members of Inhibitexs Audit
Committee are Mr. Preminger, Chairman, Dr. Medford and
Mr. Willard. The Board of Directors of Inhibitex has
determined that Mr. Preminger is the Audit Committee
Financial Expert under the U.S. Securities and Exchange
Commission (the SEC) rule implementing
Section 407 of the Sarbanes-Oxley Act of 2002. The
composition of Inhibitexs Audit Committee meets the
standards for independence under the current applicable
requirements of the Sarbanes-Oxley Act of 2002, Nasdaq rules and
SEC rules and regulations. Inhibitexs Audit Committee met
five times during fiscal year 2008.
Compensation Committee.
Inhibitexs
Compensation Committee establishes, amends, reviews and approves
the compensation and benefit plans with respect to officers and
employees, including determining individual elements of total
compensation of the Chief Executive Officer and other executive
officers, and reviewing the performance of Inhibitex and its
executive officers with respect to these elements of
compensation. During its annual compensation review of the
Companys executive officers, which takes place during the
first quarter of each fiscal year, the Companys
Compensation Committee has considered a number of metrics,
including peer group analyses and tally sheets provided by its
compensation consultant, Radford Surveys and Consulting, as well
as the individual performance of the executive officers and the
Company as a whole, based on goals set by the Compensation
Committee during its compensation review for the prior year. The
Compensation Committee also determines annual retainer, meeting
fees, equity awards and other compensation for members of the
Board of Directors and administers the issuance of stock options
and other awards under Inhibitexs equity incentive plans.
The members of the Compensation Committee are Mr. Henos,
Chairman, and Dr. Barrett. The composition of
Inhibitexs Compensation Committee meets the standards for
independence under the current applicable requirements of the
Nasdaq rules and regulations. Inhibitexs Compensation
Committee met three times during fiscal year 2008.
Nominating and Corporate Governance
Committee.
Inhibitexs Nominating and
Corporate Governance Committee develops and recommends to
Inhibitexs Board of Directors corporate governance
principles and procedures applicable to Inhibitex contained in
Inhibitexs Corporate Governance Guidelines or otherwise
adopted by the Board of Directors of Inhibitex, recommends the
director nominees for each annual meeting of Inhibitex
stockholders and ensures that the Audit, Compensation and
Nominating and Corporate Governance Committees of the Board of
Directors shall have the benefit of qualified and experienced
independent directors. The members of Inhibitexs
Nominating and Corporate Governance Committee are
Mr. Willard, Chairman, and Drs. Barrett and Medford.
The composition of Inhibitexs Nominating and Corporate
Governance Committee meets the standards for independence under
the current applicable requirements of the Nasdaq rules and
regulations. Inhibitexs Nominating and Corporate
Governance Committee met three times during fiscal year 2008.
5
Inhibitexs Nominating and Corporate Governance Committee
does not maintain any specific minimum qualifications that must
be met for director candidates. However, Inhibitexs Board
of Directors believes that directors should possess the highest
personal and professional ethics, integrity and values, and be
committed to representing the long-term interests of the
Companys stockholders. Each director must also be able to
dedicate the time and resources sufficient to ensure the
diligent performance of his or her duties. Further,
Inhibitexs Board of Directors is intended to encompass a
range of talents, experience, skills, diversity, and expertise
(particularly in the areas of accounting and finance,
management, domestic and international markets, leadership and
corporate governance, and biotechnology and related industries)
sufficient to provide sound and prudent guidance with respect to
the operations and interests of Inhibitex and its stockholders.
Inhibitexs Nominating and Corporate Governance Committee
considers persons for nomination for election to the Board of
Directors of Inhibitex from any source, including stockholder
recommendations. Inhibitexs Nominating and Corporate
Governance Committee does not evaluate candidates differently
based on who has made the recommendation. Consideration of
nominee candidates typically involves a series of internal
discussions, a review of information concerning candidates, and
interviews with selected candidates. Under its charter,
Inhibitexs Nominating and Corporate Governance Committee
has the authority to engage consultants or search firms to
assist in the process of identifying and evaluating candidates;
however, Inhibitexs Nominating and Corporate Governance
Committee did not utilize such consultants or firms in 2008 or
in 2009 through the filing of this proxy. Inhibitexs
Nominating and Corporate Governance Committee will consider
stockholder recommendations for directors sent to
Inhibitexs Nominating and Corporate Governance Committee,
Inhibitex, Inc., 9005 Westside Parkway, Alpharetta, Georgia
30009, Attention: Secretary. Any recommendation from a
stockholder should include the name, background and
qualifications of such candidate and should be accompanied by
evidence of such stockholders ownership of
Inhibitexs Common Stock.
The current charters of Inhibitexs Audit Committee,
Compensation Committee and Nominating and Corporate Governance
Committee are posted on Inhibitexs website at
www.inhibitex.com.
Stockholder
Communications
Inhibitex does not have a formal procedure for stockholder
communication with its Board of Directors. Stockholders who wish
to contact the Board of Directors, a committee of the Board of
Directors or an individual director, should send their
correspondence to Inhibitex, Inc., 9005 Westside Parkway,
Alpharetta, Georgia 30009, Attention: Board of Directors. Any
such communication should specify the applicable addressee or
addressees to be contacted, as well as the general topic of the
communication. Inhibitex will initially receive and process
communications before forwarding them to the addressee.
Inhibitex generally will not forward a stockholder communication
to its directors that it determines to be primarily commercial
in nature or may be abusive, threatening or otherwise
inappropriate.
Code of
Ethics
Inhibitex has adopted a code of ethics that applies to all of
its officers, directors and employees. Inhibitex has posted a
copy of its code of ethics on the Investors section of its
website,
www.inhibitex.com
, as required under SEC rules
and regulations. If Inhibitex makes any substantive amendments
to the code or grants any waiver, including any implicit waiver,
from a provision of the code to its principal executive,
financial or accounting officer, it will disclose the nature of
the amendment or waiver on its website or in a report on
Form 8-K.
Section 16(a)
Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934
requires the directors, executive officers and pesons who
beneficially own more than 10% of the Common Stock of Inhibitex
(collectively the Reporting Persons) to file reports
of ownership and changes in ownership of Inhibitex Common Stock
with the Securities and Exchange Commission, with a copy
delivered to Inhibitex. Based on a review of the
Section 16(a) reports furnished to Inhibitex and written
representations from certain Reporting Persons, Inhibitex
believes that the Reporting Persons have complied on a timely
basis with reporting requirements applicable to them for
transactions during 2008.
6
PRINCIPAL
STOCKHOLDERS
The following table sets forth certain information known to
Inhibitex with respect to the beneficial ownership of Common
Stock as of April 1, 2009 (except as indicated below), by:
|
|
|
each person or group of affiliated persons known to be the
beneficial owner of more than 5% of the Companys Common
Stock and not otherwise represented on the Board of Directors
(with respect to such stockholders, information is presented as
of December 31, 2008);
|
|
|
each of the directors and nominees;
|
|
|
each of the Named Executive Officers; and
|
|
|
all directors and executive officers as a group.
|
The column entitled Percentage of Shares of Common Stock
Beneficially Owned is based on 43,509,860 shares of
Common Stock outstanding, assuming no further exercises of
outstanding options or warrants. Ownership is based upon
information provided by each respective officer and director,
Forms 4, Schedules 13G and other public documents filed
with the Securities and Exchange Commission for some of the
stockholders.
Beneficial ownership is determined in accordance with the rules
of the SEC. The information does not necessarily indicate
beneficial ownership for any other purpose. For purposes of
calculating each persons or groups percentage
ownership, stock options and warrants exercisable within
60 days after April 1, 2009 are included for that
person or group, but not the stock options or warrants of any
other person or group.
Except as otherwise noted, the persons or entities in this table
have sole voting and investing power with respect to all of the
shares of Common Stock beneficially owned by them, subject to
community property laws, where applicable.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
|
|
|
|
|
Shares of
|
|
|
|
|
|
|
Common Stock
|
|
|
|
|
|
|
Beneficially
|
|
Beneficially Owned
|
|
Shares Held
|
|
|
Owned
|
|
|
5% or greater stockholders:
|
|
|
|
|
|
|
|
|
Entities affiliated with New Enterprise Associates(1)
|
|
|
7,077,343
|
|
|
|
16.1
|
%
|
Entities affiliated with BVF Partners(2)
|
|
|
6,013,921
|
|
|
|
13.8
|
|
Panetta Partners, Ltd.(3)
|
|
|
2,985,675
|
|
|
|
6.7
|
|
Named Executive Officers and Directors:
|
|
|
|
|
|
|
|
|
Russell H. Plumb(4)
|
|
|
704,150
|
|
|
|
1.6
|
|
Geoffrey W. Henson, Ph.D.(5)
|
|
|
677,333
|
|
|
|
1.5
|
|
Joseph M. Patti, M.S.P.H., Ph.D.(6)
|
|
|
438,020
|
|
|
|
1.0
|
|
M. James Barrett, Ph.D.(7)
|
|
|
7,166,835
|
|
|
|
16.2
|
|
Gabriele M. Cerrone(8)
|
|
|
3,032,775
|
|
|
|
6.8
|
|
Michael A. Henos(9)
|
|
|
220,711
|
|
|
|
*
|
|
Chris McGuigan, Ph.D.(10)
|
|
|
613,050
|
|
|
|
1.4
|
|
Russell M. Medford, M.D., Ph.D.(11)
|
|
|
77,326
|
|
|
|
*
|
|
Marc L. Preminger(12)
|
|
|
96,269
|
|
|
|
*
|
|
A. Keith Willard(13)
|
|
|
99,242
|
|
|
|
*
|
|
All current executive officers and directors as a group
(10 persons)(14)
|
|
|
13,125,711
|
|
|
|
28.2
|
|
|
|
|
*
|
|
Represents beneficial ownership of less than one percent of the
Companys Common Stock.
|
|
(1)
|
|
Consists of 5,140,482 shares of Common Stock and
174,750 shares issuable upon the exercise of outstanding
warrants beneficially owned by New Enterprise Associates 10,
Limited Partnership (NEA 10)
|
7
|
|
|
|
|
and 1,355,470 shares of Common Stock and
406,641 shares issuable upon the exercise of outstanding
warrants beneficially owned by New Enterprise Associates 11,
Limited Partnership (NEA 11). NEA Partners 10,
Limited Partnership (NEA Partners 10) is the sole
general partner of NEA 10. The individual general partners of
NEA Partners 10 are M. James Barrett, Peter J. Barris, C.
Richard Kramlich, Charles W. Newhall III, Mark W. Perry, Scott
D. Sandell and Eugene A. Trainor III. NEA Partners 10 and
the individual general partners of NEA Partners 10 may be
deemed to have shared voting and dispositive power over, and be
deemed indirect beneficial owners of, the shares directly held
by NEA 10. NEA 11 GP, LLC (NEA 11 GP) is the sole
general partner of NEA Partners 11, Limited Partnership
(NEA Partners 11) which is the sole general partner
of NEA 11. The individual managers of NEA 11 GP are M. James
Barrett, Peter J. Barris, Forest Baskett, Ryan D. Drant, Krishna
Kittu Kolluri, Charles M. Linehan, Charles W.
Newhall III, Mark W. Perry, Scott D. Sandell and
Eugene A. Trainor III. NEA Partners 11, NEA 11 GP, and
the individual managers of NEA 11 GP may be deemed to have
shared voting and dispositive power over, and be deemed indirect
beneficial owners of, the shares directly held by NEA 11. The
aforementioned indirect holders of the shares owned by NEA 10
and NEA 11 disclaim beneficial ownership of such shares
except to the extent of his actual pecuniary interest therein.
Each of NEA 10 and NEA 11 is located at 1119 St. Paul Street,
Baltimore, Maryland 21202.
|
|
(2)
|
|
As reported on the Schedule 13G/A filed by Biotechnology
Value Fund, L.P. (BVF) on January 9, 2009,
consists of 1,359,531 shares of Common Stock and
4,791 shares issuable upon the exercise of outstanding
warrants beneficially owned by BVF, 938,000 shares of
Common Stock and 3,337 shares issuable upon the exercise of
outstanding warrants beneficially owned by Biotechnology Value
Fund II, L.P. (BVF2), 3,327,000 shares of
Common Stock and 12,064 shares issuable upon the exercise
of outstanding warrants beneficially owned by BVF Investments,
L.L.C. (BVLLC), and 368,000 shares of Common
Stock and 1,198 shares issuable upon the exercise of
outstanding warrants beneficially owned by Investment 10, L.L.C.
(ILL10). BVF Partners L.P. (Partners)
and BVF Inc. may each be deemed to beneficially own
5,992,531 shares of Common Stock and 21,390 shares
issuable under warrants. Pursuant to the operating agreement
with BVLLC, Partners is authorized, among other things, to
invest the funds of Samana Capital, L.P., the majority member of
BVLLC, in the shares of Common Stock beneficially owned by BVLLC
and to vote and exercise dispositive power over those shares of
Common Stock. Partners and BVF Inc. share voting and dispositive
power over shares of Common Stock beneficially owned by BVF,
BVF2, BVLLC, and those owned by ILL10, on whose behalf Partners
acts as an investment manager and, accordingly, Partners and BVF
Inc. have beneficial ownership of all of the shares of Common
Stock owned by such parties. The principal business office of
this reporting person comprising the group is 900 North Michigan
Avenue, Suite 1100, Chicago, Illinois 60611. Mr. Mark
N. Lampert is the owner, sole director and an officer of BVF
Inc. BVF Inc. is the general partner of Partners, which is the
general partner of BVF and BVF2. Partners is the manager of
BVLLC and is investment advisor to ILL10.
|
|
(3)
|
|
Consists of 2,102,100 shares of Common Stock and
883,575 shares issuable upon the exercise of outstanding
warrants. Mr. Cerrone is the sole managing partner of
Panetta Partners, Ltd. and in such capacity exercises voting and
dispositive control over securities owned by Panetta Partners,
Ltd., despite him having only a small pecuniary interest in such
securities.
|
|
(4)
|
|
Consists of 347,857 shares of Common Stock and
356,293 shares issuable upon the exercise of stock options
exercisable within 60 days of April 1, 2009.
|
|
(5)
|
|
Consists of 154,666 shares of Common Stock,
29,333 shares issuable upon the exercise of outstanding
warrants, and 493,334 shares issuable upon the exercise of
stock options exercisable within 60 days of April 1,
2009.
|
|
(6)
|
|
Consists of 139,335 shares of Common Stock and
298,685 shares issuable upon the exercise of stock options
exercisable within 60 days of April 1, 2009.
|
|
(7)
|
|
Includes of 60,992 shares of Common Stock and
28,500 shares issuable upon the exercise of stock options
exercisable within 60 days of April 1, 2009.
Dr. Barrett is an individual general partner of NEA
Partners 10, the sole general partner of NEA 10.
Dr. Barrett is also an individual manager of NEA 11 GP, the
sole general partner of NEA Partners 11, which is the sole
general partner of NEA 11. In such
|
8
|
|
|
|
|
capacities, he may be deemed to have voting and dispositive
power with respect to the 5,140,482 shares of Common Stock
and 174,750 shares issuable upon the exercise of
outstanding warrants beneficially owned by NEA 10, and the
1,355,470 shares of Common Stock and 406,641 shares
issuable upon the exercise of outstanding warrants beneficially
owned by NEA 11. Dr. Barrett disclaims beneficial ownership
of the above referenced shares held by each of NEA 10 and NEA
11, except to the extent of his actual proportionate pecuniary
interest therein.
|
|
(8)
|
|
Includes 47,100 shares issuable upon the exercise of stock
options exercisable within 60 days of April 1, 2009
owned by Mr. Cerrone, and includes 2,102,100 shares of
Common Stock and 883,575 shares issuable upon the exercise
of outstanding warrants beneficially owned by Panetta Partners,
Ltd. Mr. Cerrone is the sole managing partner of Panetta
Partners, Ltd. and in such capacity exercises voting and
dispositive control over securities owned by Panetta Partners,
Ltd., despite him having only a small pecuniary interest in such
securities.
|
|
(9)
|
|
Includes 91,511 shares of Common Stock and
72,000 shares issuable upon the exercise of stock options
exercisable within 60 days of April 1, 2009 owned by
Mr. Henos. Also includes 44,000 shares of Common Stock
and 13,200 shares issuable upon the exercise of outstanding
warrants owned by Mrs. Henos.
|
|
(10)
|
|
Consists of 565,950 shares of Common Stock and
47,100 shares issuable upon the exercise of stock options
exercisable within 60 days of April 1, 2009.
|
|
(11)
|
|
Consists of 37,795 shares of Common Stock and
39,531 shares issuable upon the exercise of stock options
exercisable within 60 days of April 1, 2009.
|
|
(12)
|
|
Consists of 50,574 shares of Common Stock and
45,695 shares issuable upon the exercise of stock options
exercisable within 60 days of April 1, 2009.
|
|
(13)
|
|
Consists of 56,742 shares of Common Stock and
42,500 shares issuable upon the exercise of stock options
exercisable within 60 days of April 1, 2009.
|
|
(14)
|
|
Consists of 10,147,474 shares of Common Stock,
1,507,499 shares issuable upon the exercise of outstanding
warrants and 1,470,738 shares issuable upon the exercise of
stock options.
|
EXECUTIVE
OFFICERS
The following table sets forth information concerning the
current executive officers of the Company:
|
|
|
|
|
|
|
Name
|
|
Age
|
|
Position
|
|
Russell H. Plumb
|
|
|
50
|
|
|
President, Chief Executive Officer, Chief Financial Officer;
Director and Secretary
|
Joseph M. Patti, M.S.P.H., Ph.D.
|
|
|
44
|
|
|
Senior Vice President, Research and Development and Chief
Scientific Officer; Assistant Secretary
|
Geoffrey W. Henson, Ph.D.
|
|
|
61
|
|
|
Senior Vice President, Drug Development
|
Russell H. Plumb
was appointed as Inhibitexs
President, Chief Executive Officer and Chief Financial Officer
on December 30, 2006 and prior to that served as Vice
President, Finance and Administration and Chief Financial
Officer from August 2000 through December 2006. From December
1999 to July 2000, Mr. Plumb served as Chief Financial
Officer of Emory Vision, a healthcare company. From 1994 to
November 1999, he served as Chief Financial Officer and Vice
President, Finance of Serologicals Corporation, a publicly-held
biopharmaceutical company. Mr. Plumb received both a
Bachelor of Commerce and a M.B.A. from the University of
Toronto. Mr. Plumb has received designations as a certified
public accountant in Michigan and Georgia.
Joseph M. Patti, M.S.P.H., Ph.D.
has served as the
Chief Scientific Officer and Senior Vice President of Research
and Development since 2007 and prior to that served as the
Companys Vice President, Preclinical Development and Chief
Scientific Officer from 1998 to 2007 and Vice President of
Research and Development from 2005 to 2007. From 1994 to 1998,
Dr. Patti was an Assistant Professor at Texas
A&Ms Institute of Biosciences and Technology. From
1996 to 1998, he also served on the faculty at the University of
Texas Health Science Center Graduate School of Biomedical
Sciences. Dr. Patti received a B.S. in Microbiology
9
from the University of Pittsburgh, an M.S.P.H. from the
University of Miami, School of Medicine and a Ph.D. in
Biochemistry from the University of Alabama at Birmingham.
Geoffrey W. Henson, Ph.D.
has served as Senior Vice
President, Drug Development since the acquisition of FermaVir in
September 2007. Dr. Henson was previously President, Chief
Executive Officer, Secretary and a director of FermaVir from
August 2005 to September 2007. From 2003 to March 2005,
Dr. Henson was a pharmaceutical consultant. He was a
co-founder of AnorMED, a Canadian biopharmaceutical company,
where he was employed in various management capacities from
1996-2003,
most recently as COO. Prior to co-founding AnorMED, he held a
number of management and scientific positions in the Biomedical
Research Group at Johnson Matthey from
1985-1996.
From
1982-1985,
Dr. Henson was a researcher and member of the Basel
Institute for Immunology in Basel, Switzerland. Dr. Henson
obtained his M.S. and Ph.D. in Biochemistry from New Mexico
State University, and B.S. in Chemistry from Dickinson College.
10
EXECUTIVE
COMPENSATION
Summary
Compensation Table
The following table sets forth information for the two fiscal
years ended December 31, 2008 and 2007 concerning
compensation of (i) the individual serving as
Inhibitexs principal executive officer and principal
financial officer during 2008 and (ii) Inhibitexs
other most highly compensated executive officers who were
serving as executive officers as of December 31, 2008.
SUMMARY
COMPENSATION TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
Option
|
|
Incentive Plan
|
|
All Other
|
|
|
|
|
Fiscal
|
|
Salary
|
|
Bonus
|
|
Awards
|
|
Awards
|
|
Compensation
|
|
Compensation
|
|
Total
|
Name and Principal Position
|
|
Year
|
|
($)
|
|
($)
|
|
($)(1)
|
|
($)(2)
|
|
($)
|
|
($)(3)
|
|
($)
|
|
Russell H. Plumb,
|
|
|
2008
|
|
|
|
350,000
|
|
|
|
|
|
|
|
272,732
|
|
|
|
240,848
|
|
|
|
62,000
|
(6)
|
|
|
13,663
|
|
|
|
939,243
|
|
President, Chief
|
|
|
2007
|
|
|
|
350,000
|
|
|
|
|
|
|
|
338,662
|
|
|
|
163,936
|
|
|
|
134,000
|
|
|
|
11,805
|
|
|
|
998,403
|
|
Executive Officer and Chief
Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Joseph M. Patti, M.S.P.H., Ph.D.,
|
|
|
2008
|
|
|
|
250,000
|
|
|
|
|
|
|
|
32,799
|
|
|
|
163,738
|
|
|
|
35,000
|
(6)
|
|
|
13,790
|
|
|
|
495,327
|
|
Senior Vice President, Research
|
|
|
2007
|
|
|
|
242,562
|
|
|
|
|
|
|
|
104,102
|
|
|
|
161,474
|
|
|
|
77,000
|
|
|
|
11,524
|
|
|
|
596,662
|
|
and Development, and Chief
Scientific Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Geoffrey W. Henson,
|
|
|
2008
|
|
|
|
240,000
|
|
|
|
|
|
|
|
|
|
|
|
125,976
|
|
|
|
24,000
|
(6)
|
|
|
78,228
|
(5)
|
|
|
468,204
|
|
Ph.D., Senior Vice
|
|
|
2007
|
|
|
|
66,292
|
|
|
|
|
|
|
|
|
|
|
|
35,186
|
|
|
|
38,500
|
|
|
|
2,596
|
|
|
|
142,574
|
|
President, Drug Development(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
The amounts shown in this column represent the dollar amounts
recognized for share-based compensation expense for financial
statement reporting purposes for unvested restricted stock
granted in prior years in accordance with Statement of Financial
Accounting Standards No. 123 (revised 2004),
Share-Based
Payment
, or SFAS 123(R), but without giving effect to
estimated forfeitures related to service-based vesting
conditions. The assumptions used to compute the fair value are
disclosed in Note 13, Share-Based Award Plans,
a footnote to Inhibitexs audited financial statements for
the fiscal year ended December 31, 2008.
|
|
(2)
|
|
The amounts shown in this column represent the dollar amounts
recognized for share-based compensation expense for financial
statement reporting purposes for unvested stock options granted
in prior years in accordance with Statement of Financial
Accounting Standards No. 123 (revised 2004),
Share-Based
Payment
, or SFAS 123(R), but without giving effect to
estimated forfeitures related to service-based vesting
conditions. The assumptions used to compute the fair value are
disclosed in Note 13, Share-Based Award Plans,
a footnote to Inhibitexs audited financial statements for
the fiscal year ended December 31, 2008.
|
|
(3)
|
|
Other compensation generally includes life and long-term
disability insurance paid for by Inhibitex on the
employees behalf and Inhibitexs matching
contributions to the executives 401(k) match in
conjunction with the Company plan.
|
|
(4)
|
|
Dr. Henson was appointed Senior Vice President of Drug
Development in September 2007. The amount shown under
Salary represents base salary paid to
Dr. Henson as Senior Vice President of Drug Development
from such time in 2007.
|
|
(5)
|
|
Includes $67,452 in moving and relocation costs.
|
|
(6)
|
|
The amounts shown in this column represent accrued cash
incentives for 2008 to be paid in the future.
|
11
Outstanding
Equity Awards at Fiscal Year End
The following table sets forth for each of Inhibitexs
named executive officers certain information regarding
unexercised options and shares of restricted stock that had not
vested as of December 31, 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
|
|
Market
|
|
|
|
Number of
|
|
|
Number of
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
|
Value of
|
|
|
|
Securities
|
|
|
Securities
|
|
|
Securities
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Shares or
|
|
|
|
Underlying
|
|
|
Underlying
|
|
|
Underlying
|
|
|
|
|
|
|
|
|
Shares or
|
|
|
Units of
|
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
|
|
|
|
|
|
Units of
|
|
|
Stock That
|
|
|
|
Options
|
|
|
Options
|
|
|
Unearned
|
|
|
Option
|
|
|
Option
|
|
|
Stock That
|
|
|
Have Not
|
|
|
|
(#)
|
|
|
(#)
|
|
|
Options
|
|
|
Exercised
|
|
|
Expiration
|
|
|
Have Not
|
|
|
Vested ($)
|
|
Name
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
(#)
|
|
|
Price ($)
|
|
|
Date
|
|
|
Vested (#)
|
|
|
(1)
|
|
|
Russell H. Plumb,
|
|
|
10,504
|
|
|
|
|
|
|
|
|
|
|
$
|
0.68
|
|
|
|
08/14/10
|
|
|
|
|
|
|
|
|
|
President, Chief Executive
|
|
|
2,627
|
|
|
|
|
|
|
|
|
|
|
$
|
0.68
|
|
|
|
01/01/11
|
|
|
|
|
|
|
|
|
|
Officer and Chief Financial
|
|
|
14,706
|
|
|
|
|
|
|
|
|
|
|
$
|
1.90
|
|
|
|
04/17/09
|
|
|
|
|
|
|
|
|
|
Officer
|
|
|
14,706
|
|
|
|
|
|
|
|
|
|
|
$
|
9.38
|
|
|
|
04/30/10
|
|
|
|
|
|
|
|
|
|
|
|
|
52,500
|
|
|
|
17,500
|
(2)
|
|
|
|
|
|
$
|
9.07
|
|
|
|
02/02/11
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
|
|
|
|
|
|
|
|
|
$
|
2.05
|
|
|
|
04/24/12
|
|
|
|
|
|
|
|
|
|
|
|
|
193,750
|
|
|
|
581,250
|
(3)
|
|
|
|
|
|
$
|
1.445
|
|
|
|
09/19/17
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
140,000
|
(4)
|
|
$
|
36,400
|
|
Joseph M. Patti M.S.P.H., Ph.D.,
|
|
|
22,655
|
|
|
|
|
|
|
|
|
|
|
$
|
0.29
|
|
|
|
05/01/10
|
|
|
|
|
|
|
|
|
|
Senior Vice President,
|
|
|
12,606
|
|
|
|
|
|
|
|
|
|
|
$
|
0.68
|
|
|
|
01/01/11
|
|
|
|
|
|
|
|
|
|
Research Development and
|
|
|
42,017
|
|
|
|
|
|
|
|
|
|
|
$
|
1.90
|
|
|
|
04/17/09
|
|
|
|
|
|
|
|
|
|
Chief Scientific Officer
|
|
|
18,907
|
|
|
|
|
|
|
|
|
|
|
$
|
9.38
|
|
|
|
04/30/10
|
|
|
|
|
|
|
|
|
|
|
|
|
69,375
|
|
|
|
23,125
|
(2)
|
|
|
|
|
|
$
|
9.07
|
|
|
|
02/02/11
|
|
|
|
|
|
|
|
|
|
|
|
|
35,000
|
|
|
|
|
|
|
|
|
|
|
$
|
2.05
|
|
|
|
04/24/12
|
|
|
|
|
|
|
|
|
|
|
|
|
75,000
|
|
|
|
225,000
|
(3)
|
|
|
|
|
|
$
|
1.445
|
|
|
|
09/19/17
|
|
|
|
|
|
|
|
|
|
Geoffrey W. Henson, Ph.D.,
|
|
|
35,000
|
|
|
|
105,000
|
(3)
|
|
|
|
|
|
$
|
1.445
|
|
|
|
09/19/17
|
|
|
|
|
|
|
|
|
|
Senior Vice President, Drug
|
|
|
178,750
|
|
|
|
|
|
|
|
|
|
|
$
|
2.00
|
|
|
|
04/04/15
|
|
|
|
|
|
|
|
|
|
Development
|
|
|
123,750
|
|
|
|
137,500
|
(5)
|
|
|
|
|
|
$
|
2.00
|
|
|
|
04/04/15
|
|
|
|
|
|
|
|
|
|
|
|
|
9,167
|
|
|
|
18,333
|
(6)
|
|
|
|
|
|
$
|
3.45
|
|
|
|
01/31/17
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Based on the closing market price of Inhibitex Common Stock on
December 31, 2008.
|
|
(2)
|
|
Vest on February 2, 2009.
|
|
(3)
|
|
Vest with respect to 33.33% of the shares on September 19,
2009, 2010 and 2011.
|
|
(4)
|
|
Vest on January 1, 2009.
|
|
(5)
|
|
Vest on April 4, 2009.
|
|
(6)
|
|
Vest with respect to 50% of the shares on January 31, 2009
and 2010.
|
Employment
Agreements
Russell H. Plumb.
Effective December 30,
2006, Inhibitex entered into an employment agreement with
Russell H. Plumb, its President, Chief Executive Officer and
Chief Financial Officer. The agreement has an initial term of
one year and automatically renews on its anniversary date for an
additional one-year term unless employment is terminated in
accordance with the agreement. The agreement provides for an
annual base salary of $350,000, subject to annual increases as
approved by Inhibitexs Compensation Committee, and health
and insurance benefits. Mr. Plumb is also eligible for
bonus and incentive compensation (including equity-based awards)
as established by the Compensation Committee, with a target
bonus of up to 50% of base salary. In connection with the
original execution of the agreement, Mr. Plumb received
280,000 shares of restricted stock, which vested over a two
year term ending January 2009.
Under the agreement, Inhibitex or Mr. Plumb may terminate
his employment at any time. If Inhibitex terminates
Mr. Plumb without cause, or he resigns for good reason, he
will be entitled, subject to execution of
12
a release in favor of Inhibitex, to receive severance payments
representing 18 months of base salary, cash incentive bonus
and health and insurance benefits. In addition, if within one
year after a change in control of Inhibitex (or in contemplation
of a change in control that is reasonably likely to occur),
Mr. Plumb is involuntarily terminated for any reason other
than cause, or resigns for good reason, he will be entitled,
subject to his execution of a release in favor of Inhibitex, to
receive severance payments totaling 24 months of base
salary, cash incentive bonus and health and insurance benefits.
In addition, vesting of restricted stock and stock options to
purchase shares of Common Stock held by Mr. Plumb would
accelerate upon a change in control.
While employed by Inhibitex and for a period equal to the
greater of one year or the severance period, Mr. Plumb has
agreed that he shall not directly or indirectly in the United
States (i) render substantially similar services to any
person or entity which competes with Inhibitex;
(ii) solicit for employment any person who was employed by
it; or (iii) call on or solicit any of Inhibitexs
customers or potential customers with which Inhibitex had
previous negotiations.
Other Named Executive Officer Employment
Agreements.
On February 24, 2004, Inhibitex
entered into employment agreement with Dr. Patti which was
amended and restated as of February 26, 2007. Inhibitex
entered into an employment agreement with Dr. Henson on
September 20, 2007. Each of the employment agreements has
an initial term of one year and automatically renews on its
anniversary date for an additional one-year term unless the
respective officers employment is terminated in accordance
with the agreement.
Dr. Pattis employment agreement provides for an
annual base salary of $250,000, subject to annual increases as
approved by the Compensation Committee, and health and insurance
benefits. The employment agreement also provides for bonus and
incentive compensation incentives, including equity awards as
established by the Compensation Committee and a target annual
cash incentive bonus of up to 35% of base salary for
Dr. Patti.
Dr. Hensons employment agreement provides for an
annual base salary of $240,000, subject to annual increases as
approved by the Compensation Committee, and health and insurance
benefits. The employment agreement also provides for bonus and
incentive compensation incentives, including stock options and
other equity-based compensation as established by the
Compensation Committee, and a target annual cash incentive bonus
of up to 30% of Dr. Hensons base salary. Pursuant to
the agreement, the Company issued to Dr. Henson options to
purchase 140,000 shares of the Companys Common Stock,
which vest over a four year term ending September 2011.
The following provisions in Dr. Hensons and
Dr. Pattis employment agreements with the Company are
identical. Inhibitex or the executive may terminate the
executives employment at any time. If Inhibitex terminates
the executives employment without cause, or if the
executive resigns for good reason, the executive will be
entitled, subject to execution of a release in the favor of
Inhibitex, to receive severance payments representing
12 months of salary and health and insurance benefits. In
addition, if within one year after a change in control of
Inhibitex (or in contemplation of a change in control that is
reasonably likely to occur), the employment of the executive is
involuntarily terminated for any reason other than cause, or he
resigns for good reason, the executive will be entitled, subject
to execution of a release in the favor of Inhibitex, to receive
severance payments totaling 18 months of salary and health
and insurance benefits. In addition, vesting of options to
purchase shares of Common Stock and restricted stock held by the
executive would accelerate upon a change in control.
While employed by Inhibitex and for a period equal to the
greater of one year or the severance period, the executive has
agreed not to, directly or indirectly, in the United States
(i) render substantially similar services to any person or
entity which competes with Inhibitex; (ii) solicit for
employment any person who was employed by Inhibitex; or
(iii) call on or solicit any of Inhibitexs customers
or potential customers with which it has had previous
negotiations.
13
Equity
Compensation Plan Information
The following table sets forth, as of April 1, 2009,
information about Inhibitexs equity compensation plans
that have been approved by Inhibitexs stockholders, and
the number of shares of Inhibitexs Common Stock
exercisable under all outstanding options, the weighted-average
exercise price of all outstanding options and the number of
shares available for future issuance under Inhibitexs
equity compensation plans.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(c)
|
|
|
|
(a)
|
|
|
|
|
|
Number of securities
|
|
|
|
Number
|
|
|
|
|
|
remaining available for
|
|
|
|
of securities to be
|
|
|
(b)
|
|
|
future issuance under
|
|
|
|
issued
|
|
|
Weighted-average
|
|
|
equity compensation
|
|
|
|
upon exercise of
|
|
|
exercise price of
|
|
|
plans excluding securities
|
|
Plan Category
|
|
outstanding options
|
|
|
Outstanding options
|
|
|
reflected in column(a)
|
|
|
Equity Compensation Plans Approved by Stockholders
|
|
|
4,762,592
|
|
|
$
|
2.28
|
|
|
|
1,628,583
|
|
Equity Compensation Plans Not Approved by Stockholders
|
|
|
13,972
|
|
|
|
0.36
|
|
|
|
n/a
|
|
2004
Stock Incentive Plan
The Company adopted, and the stockholders approved, the
Companys 2002 Stock Incentive Plan in February 2002. The
Company amended, restated and renamed it as the 2004 Stock
Incentive Plan (the Incentive Plan) and the
stockholders approved it as of February 20, 2004. In May
2005 and September 2007, pursuant to a stockholder vote, the
2004 Plan was further modified by adding 1,500,000 and
2,800,000 shares of Common Stock, respectively, to the
number of shares already reserved for award grants.
The Incentive Plan provides for the grant of equity awards
including: incentive stock options (ISOs),
non-statutory stock options, deferred stock units, restricted
stock, dividend rights, stock appreciation rights, cash payments
and other forms of share-based compensation, which may be
granted to employees, directors, contractors and consultants.
Currently, approximately 34 persons are eligible for awards
under the Incentive Plan. The Incentive Plan will terminate upon
the earlier of its termination by the Compensation Committee or
on December 31, 2017.
Shares Reserved.
As of April 1, 2009,
1,628,583 shares of Common Stock were reserved and
available for future issuance of equity awards under the
Incentive Plan. Options to purchase 4,776,564 shares of
Common Stock were outstanding under the Incentive Plan. There
were no restricted stock or other equity awards outstanding as
of April 1, 2009. Equity awards granted under the
Companys Amended and Restated 1998 Equity Ownership Plan
and the 2002 Non-Employee Directors Plan that expire, are
forfeited or otherwise terminate without being exercised, will
become available for re-issuance under the Incentive Plan. When
an equity award expires, is settled in cash, or is terminated
before it is exercised or shares are not issued or are withheld
upon the exercise of an equity award, the shares not acquired,
not issued or withheld pursuant to the equity award shall again
become available for issuance under the Incentive Plan.
Similarly, any shares tendered to pay an exercise price or
withheld in satisfaction of tax obligations shall again become
available for issuance under the Incentive Plan.
Administration and Exercise Price.
The
Compensation Committee administers the Incentive Plan. The
Compensation Committee may delegate authority to perform certain
functions under the Incentive Plan to the executive officers.
Subject to the terms of the Incentive Plan, the Compensation
Committee determines: (i) the recipients of equity awards,
(ii) the amount and types of equity awards to be granted,
(iii) any applicable performance goals and the terms and
conditions of such equity awards, (iv) the exercise price
of option grants, (v) the purchase price for rights to
purchase restricted stock, and (vi) the strike price for
stock appreciation rights.
Non Employee Directors.
Pursuant to the terms
of the Incentive Plan, each person who is elected for the first
time to be a non-employee director will be granted an option
grant to purchase 20,000 shares of Common Stock.
Subsequently, each non-employee director will automatically be
granted an option grant to purchase 7,500 shares of Common
Stock on February 1 of each year (18,000 shares in the case
of the Chairman of the
14
Board), provided, however, that each non-employee director who
has been a non-employee director for less than 12 months as
of February 1 will receive an option grant that has been
pro-rated from the date of commencement of service as a
non-employee director.
Vesting and Term.
Equity awards granted under
the Incentive Plan generally vest over one to four years for
employees. Annual stock option grants under the Incentive Plan
to non-employee directors vest in their entirety on the first
anniversary of the date of grant, and the initial stock option
grants to directors upon joining the Board vest over a three
year period after the date of grant at the rate of 33% for each
completed year of service. The vesting and term of each equity
award are set by the Compensation Committee, provided that the
term of any equity award cannot exceed ten years from the date
of grant.
Transferability.
Subject to certain
exceptions, awards under the Incentive Plan may not be
transferred other than by will or by the laws of descent and
distribution. However, a participant may designate a beneficiary
who may exercise the rights associated with the award following
the participants death. The Compensation Committee, in its
discretion, may provide for the transfer of equity awards
granted under the Incentive Plan to certain trusts and
partnerships for the benefit of or held by immediate family
members of the participant.
Effect of a Change in Control.
Upon a change
in control, as defined in the Incentive Plan, and under certain
circumstances, the vesting of unvested equity awards is subject
to acceleration pursuant to a formula based upon the
employees or a non-employee directors length of
service so that, with respect to an employee or a non-employee
director who has been employed by the Company for two years, all
such options would vest.
Termination of Service.
An employee or a
non-employee director whose service ceases for any reason, other
than removal of such for cause, may exercise vested options for
3 months or 12 months, respectively, following their
last day of service. In the case of the removal for cause, their
options, regardless of their vesting status, shall terminate
immediately upon such removal.
15
COMPENSATION
OF DIRECTORS
Non-employee directors receive an annual cash retainer of
$25,000. In addition to the foregoing retainer, the chairmen of
Inhibitexs Board of Directors, Audit Committee,
Compensation Committee and Nominating and Corporate Governance
Committee receive additional annual cash retainers of $20,000,
$7,500, $5,000 and $5,000, respectively. Other non-employee
directors who serve on one or more committees of the Board of
Directors receive an additional $2,500 for each committee on
which they serve. In the event that any committee member
participates in more than four meetings of such committee in a
year, such committee member, except for the chairman, is
entitled to receive $500 for each additional meeting he or she
attends. Each director is also entitled to annual option grants
to purchase 7,500 shares of Common Stock; provided that the
chairman of the Board of Directors is entitled to an annual
option grant to purchase 18,000 shares of Common Stock,
which vest over a one year period. All of the non-employee
directors are reimbursed for out-of-pocket expenses incurred in
attending board and committee meetings.
In order to assist the Company in preserving its cash resources,
in May 2006, the then members of the Board of Directors agreed
to accept 150% of their annual cash retainers for the two year
period ending June 2008 in the form of restricted shares in lieu
of their cash retainers. These restricted shares fully vested on
June 30, 2008. Each non-employee director is also eligible
to participate in the Incentive Plan, pursuant to which upon his
or her election to the Board of Directors, he or she is entitled
to an initial option grant to purchase 20,000 shares of
Common Stock, which vests over a three year period.
The following table summarizes the compensation received by
Inhibitexs directors during 2008.
DIRECTOR
COMPENSATION TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earned
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
or
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
Nonqualified
|
|
|
|
|
|
|
|
|
|
Paid in
|
|
|
Stock
|
|
|
Option
|
|
|
Incentive Plan
|
|
|
Deferred
|
|
|
All Other
|
|
|
|
|
|
|
Cash
|
|
|
Awards
|
|
|
Awards
|
|
|
Compensation
|
|
|
Compensation
|
|
|
Compensation
|
|
|
Total
|
|
Name
|
|
($)(1)
|
|
|
($)(2)(5)
|
|
|
($)(3)(5)
|
|
|
($)
|
|
|
Earnings
|
|
|
($)
|
|
|
($)
|
|
|
M. James Barrett, Ph.D.(4)
|
|
|
15,000
|
|
|
|
26,468
|
|
|
|
3,763
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
45,231
|
|
Gabriele M. Cerrone
|
|
|
25,000
|
|
|
|
|
|
|
|
3,165
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28,165
|
|
Robert A. Hamm
|
|
|
15,500
|
|
|
|
22,672
|
|
|
|
20,087
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
58,259
|
|
Michael A. Henos
|
|
|
25,000
|
|
|
|
47,189
|
|
|
|
9,032
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
81,221
|
|
Chris McGuigan, Ph.D.
|
|
|
25,000
|
|
|
|
|
|
|
|
3,165
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28,165
|
|
Russell M. Medford, M.D., Ph.D.
|
|
|
15,500
|
|
|
|
22,672
|
|
|
|
3,763
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41,935
|
|
Marc L. Preminger, FSA, MAAA
|
|
|
16,250
|
|
|
|
30,211
|
|
|
|
3,763
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,224
|
|
A. Keith Willard
|
|
|
15,000
|
|
|
|
24,570
|
|
|
|
11,318
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,888
|
|
|
|
|
(1)
|
|
Fees earned in 2008 represent service on Inhibitexs Board
of Directors or Committees of the Board of Directors.
|
|
(2)
|
|
The amounts shown in this column represent the dollar amounts
recognized for share-based compensation expense for financial
statement reporting purposes for unvested restricted stock
granted in prior years in accordance with Statement of Financial
Accounting Standards No. 123 (revised 2004),
Share-Based
Payment
, or SFAS 123(R), but without giving effect to
estimated forfeitures related to service-based vesting
conditions. The assumptions used to compute the fair value are
disclosed in Note 13, Share-Based Award Plans a
footnote to Inhibitexs audited financial statements for
the fiscal year ended December 31, 2008.
|
|
(3)
|
|
The amounts shown in this column represent the dollar amounts
recognized for share-based compensation expense for financial
statement reporting purposes for stock options granted in 2008
and unvested stock options granted in prior years in accordance
with Statement of Financial Accounting Standards No. 123
(revised 2004),
Share-Based Payment
, or SFAS 123(R),
but without giving effect to estimated forfeitures related to
service-based vesting conditions. The assumptions used to
compute the fair value are disclosed in Note 13,
Share-Based Award Plans, a footnote to Inhibitexs
audited financial statements for the fiscal year ended
December 31, 2008. In 2008, Drs. Barrett and Medford
and Messrs. Hamm, Preminger, and
|
16
|
|
|
|
|
Willard each were granted stock options to purchase
7,500 shares of Common Stock with a grant date fair value
of $3,469, and Mr. Henos was granted stock options to
purchase 18,000 shares of Common Stock with a grant date
fair value of $8,325.
|
|
(4)
|
|
Dr. Barretts cash fees are paid directly to New
Enterprise Associates.
|
|
(5)
|
|
The following table sets forth the aggregate number of shares of
Common Stock underlying equity awards outstanding at
December 31, 2008:
|
|
|
|
|
|
|
|
Stock Option
|
|
Name
|
|
Grants
|
|
|
M. James Barrett, Ph.D.
|
|
|
28,500
|
|
Gabriele M. Cerrone
|
|
|
47,100
|
|
Robert A. Hamm
|
|
|
42,500
|
|
Michael A. Henos
|
|
|
72,000
|
|
Chris McGuigan, Ph.D.
|
|
|
47,100
|
|
Russell M. Medford, M.D., Ph.D.
|
|
|
43,733
|
|
Marc L. Preminger, FSA, MAAA
|
|
|
45,695
|
|
A. Keith Willard
|
|
|
42,500
|
|
17
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
In contemplation with the merger with Inhibitex, On
April 9, 2007, FermaVir amended outstanding stock options
to acquire an aggregate 378,000 shares of FermaVirs
common stock held by FermaVirs directors, except Geoffrey
W. Henson, Ph.D. Such stock options became 100% vested as
of September 19, 2007 , the date of the closing of the
merger with Inhibitex, and the exercise period of such options
was modified to provide that the exercise period shall expire
upon the earlier of (i) three (3) years following the
effective date of the merger and (ii) September 24,
2015; provided that the exercise period with respect to options
held by Chris McGuigan, Ph.D. and Gabriele Cerrone were
modified to provide that the exercise period shall expire upon
the earlier of (i) three (3) years after their service
to Inhibitex terminates and (ii) September 24, 2015.
Dr. Hensons outstanding options as of the date of the
merger, adjusted for the exchange ratio, were assumed by
Inhibitex on identical terms.
18
REPORT OF
THE AUDIT COMMITTEE
The Board has adopted a written charter pursuant to which the
Audit Committee performs its oversight responsibilities and
duties. The Audit Committees primary duties and
responsibilities under its charter are to oversee the integrity
of the Companys accounting and financial reporting
processes and the audits of the financial statements reported to
the public, oversee the Companys systems of internal
controls and compliance with applicable laws and regulations,
appoint and monitor the independence, qualifications and
performance of the Companys independent registered public
accounting firm and provide an avenue of communication between
the Companys independent registered public accounting
firm, management and the Board of Directors. The Audit
Committees charter is available for review on the
Companys web site. The members of the Audit Committee are
not professionally engaged in the practice of auditing or
accounting and therefore rely, without independent verification,
on the information provided to them and on the representations
made to them by management and the Companys independent
registered public accounting firm.
Management has the primary responsibility for the Companys
financial reporting processes, including developing and
overseeing the Companys system of internal controls, and
the preparation of the Companys financial statements.
Under the Section 404 of the Sarbanes-Oxley Act of 2002,
management is also responsible for performing an assessment of
the Companys system of internal controls and certifying
that it has performed such an assessment and such internal
controls are in place and operating effectively.
Ernst & Young LLP (Ernst &
Young), the Companys independent registered public
accounting firm, is responsible for auditing the Companys
annual financial statements in accordance with generally
accepted auditing standards and for issuing an opinion on those
financial statements.
In fulfilling its oversight responsibilities, the Audit
Committee reviewed and discussed the Companys audited
financial statements with its management and Ernst &
Young. The Audit Committee also discussed with Ernst &
Young the matters required to be discussed by Statement on
Auditing Standards No. 61 (Communications with Audit
Committees). This included a discussion of the judgment of
Ernst & Young as to the quality and acceptability of
the Companys accounting principles, and such other matters
that generally accepted auditing standards require to be
discussed with the Audit Committee. The Audit Committee also
received the written disclosures and the letter from
Ernst & Young required by the Public Company
Accounting Oversight Board Rule 3526 (Communication with
Audit Committees Concerning Independence) and the Audit
Committee discussed the independence of Ernst & Young.
Based on the Audit Committees review and discussions noted
above, the Audit Committee recommended to the Board of Directors
that the Companys audited financial statements be included
in the Companys Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008 for filing with
the Securities and Exchange Commission.
Representatives of Ernst & Young are expected to be
present at the Annual Meeting to make a statement if they so
desire and they are expected to be available to respond to
appropriate questions.
AUDIT COMMITTEE OF THE BOARD OF DIRECTORS
Marc L. Preminger, FSA, MAAA, Chairman
Russell M. Medford, M.D., Ph.D.
A. Keith Willard
19
FEES PAID
TO INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS
The following table sets forth the aggregate fees accrued by
Inhibitex for audit and other services provided by
Ernst & Young for fiscal years 2008 and 2007.
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
Audit Fees(1)
|
|
$
|
275,000
|
|
|
$
|
470,000
|
|
Audit-Related Fees
|
|
|
|
|
|
|
|
|
Tax Fees
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
275,000
|
|
|
$
|
470,000
|
|
|
|
|
(1)
|
|
Audit fees represent fees for professional services provided in
connection with the audit of the Companys financial
statements and review of its quarterly financial statements and
audit services provided in connection with other statutory or
regulatory filings.
|
Inhibitex paid no other fees to Ernst & Young during
fiscal years 2008 and 2007. The Audit Committee has adopted a
pre-approval policy with respect to any fees that may be paid to
the Companys independent registered public accounting firm
and, therefore, approves in advance all fees paid to
Ernst & Young.
Pursuant to the Companys pre-approval policy, on an annual
basis the Audit Committee specifically reviews and pre-approves
the audit services to be performed by the Companys
independent registered public accounting firm, along with the
associated fees. Prior to the end of each fiscal year,
management provides to the Audit Committee a list of other
services that it anticipates requiring of its independent
registered public accounting firm in the following year, along
with estimates of the costs of these services. The Committee
subsequently considers the general pre-approval of these
services and their costs. All other services are pre-approved by
the Audit Committee in accordance with applicable requirements.
PROPOSAL 2
APPROVAL OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION, AS
AMENDED, TO INCREASE THE AUTHORIZED COMMON STOCK FROM
75,000,000
SHARES UP TO 150,000,000 SHARES
General.
The Companys Certificate of Incorporation currently
authorizes the Company to issue 75,000,000 shares of Common
Stock and 5,000,000 shares of preferred stock, with a par
value of $0.001 per share. As of the Record Date, approximately
43,521,527 shares of Common Stock were issued and
outstanding and 14,427,557 shares of Common Stock were
reserved for issuance upon the exercise of Common Stock warrants
or reserved for issuance under the Companys 2004 Stock
Incentive Plan. Based on the number of outstanding and reserved
shares of Common Stock as described above, the Company has
17,050,916 shares of Common Stock available for issuance as
of the Record Date. In order to ensure that there are sufficient
shares of Common Stock available for issuance by the Company,
the Board has approved, subject to stockholder approval, an
amendment to the Companys Certificate of Incorporation to
increase the number of shares of Common Stock from
75,000,000 shares to 150,000,000 shares.
Purpose
and Effect of the Amendment.
The principal purpose of the proposed amendment to the
Certificate of Incorporation is to authorize additional shares
of Common Stock to be available for issuance in the event that
the Board determines that it is necessary or appropriate to
issue shares of Common Stock in connection with future
activities, including financings, other strategic transactions,
mergers and acquisitions, stock dividends or splits, employee
and director benefit plans, and other corporate purposes. While
the Company currently does not have any particular plans or
commitments for additional financings or other strategic
transactions, the Company continually evaluates financial and
strategic opportunities that might be available to it in the
future. Approval of the proposed
20
amendment to the Certificate of Incorporation will provide the
Company with the flexibility to consummate future financings or
other strategic transactions involving the issuance of
additional shares of Common Stock, or securities convertible
into shares of Common Stock, or take advantage of other
favorable financial and strategic opportunities without the time
and expense of seeking stockholder approval in connection with a
contemplated issuance of Common Stock. If the Company does not
have adequate resources to enter into strategic transactions, as
discussed above, because it is unable to issue shares of Common
Stock in a timely manner, it may have to delay, reduce or
eliminate certain of its development activities or certain other
aspects of its operations and its business may be materially and
adversely affected.
If approved by the stockholders, the additional shares of Common
Stock authorized would be available for issuance for any proper
corporate purpose as determined by the Board without further
approval by the stockholders, except as required by law, the
NASDAQ Stock Market, Inc., or the rules of any other national
securities exchange on which shares of Common Stock are listed.
The additional shares of Common Stock to be authorized will have
rights identical to the currently outstanding Common Stock. The
proposed amendment will not affect the par value of the Common
Stock, which will remain at $0.001 per share. Under the
Certificate of Incorporation, the Companys stockholders do
not have preemptive rights, which means they do not have the
right to purchase shares in any future issuance of Common Stock
in order to maintain their proportionate equity interest in the
Company. Although the Companys Board of Directors will
authorize the further issuance of Common Stock only when it
considers such issuance to be in the best interests of the
Company, stockholders should recognize that any such issuance of
additional Common Stock may have the effect of diluting the
earnings (loss) per share and book value per share of
outstanding shares of Common Stock and the equity and voting
rights of holders of shares of Common Stock. If approved by the
stockholders, the increase in the authorized number of shares of
Common Stock and the subsequent issuance of such shares could
have the effect of delaying or preventing a change of control of
the Company without further action by the stockholders. Shares
of authorized and unissued Common Stock could (within the limits
imposed by applicable law) be issued in one or more transactions
that could make a change of control of the Company less likely.
The additional authorized shares could be used to discourage
persons from attempting to gain control of the Company by
diluting the voting power of shares then outstanding or
increasing the voting power of persons who would support the
Board in a potential takeover scenario. The Board is not aware
of any present or contemplated attempt to acquire control of the
Company, and this proposal is not being presented with the
intent that it be utilized as an anti-takeover device.
Proposed
Amendment.
The proposed amendment provides that the first sentence of
Article Fourth of the Certificate of Incorporation be
amended to read in its entirety as follows: The total
number of shares of all classes of stock that the Corporation
shall be authorized to issue is 155,000,000, of which
150,000,000 shall be designated as Common Stock with a par value
of $0.001 per share, and 5,000,000 shall be designated as
Preferred Stock with a par value of $0.001 per share.
The affirmative vote of the holders of outstanding shares
representing at least a majority of the voting power of all of
the shares of Common Stock issued and outstanding on the Record
Date will be required to approve Proposal 2.
The Board recommends a vote FOR the proposed amendment to the
Certificate of Incorporation to increase the authorized Common
Stock of the Company from 75,000,000 shares to
150,000,000 shares.
OTHER
MATTERS
The Board knows of no matters to be presented at the Annual
Meeting other than as described in this Proxy Statement.
However, if any other matters properly come before the Annual
Meeting or any adjournment thereof, it is intended that proxies
in the accompanying form will be voted in accordance with the
discretion of the persons named therein.
21
Proxy
Solicitation
The solicitation of proxies is being conducted by the Company,
which will bear the cost of these solicitations. The Company
will request brokerage houses, banks and other custodians or
nominees holding stock in their names for others to forward
proxy materials to their customers or principals who are the
beneficial owners of shares and will reimburse them for their
expenses in doing so. The Company expects to solicit proxies
primarily by mail, but directors, officers, and other employees
of the Company may also solicit in person, by telephone, by
facsimile, or by mail. The Company may also engage a proxy
solicitation firm to assist it, and if it does, the Company
expects the cost of the engagement not to exceed $15,000.
Stockholder
Proposals for Next Years Annual Meeting
Pursuant to
Rule 14a-8
under the Exchange Act, some stockholder proposals may be
eligible for inclusion in the proxy statement for the
Companys next Annual Meeting of Stockholders. For a
proposal of a stockholder to be considered for inclusion in next
years proxy statement, it must be submitted in writing,
with the proof of stock ownership in accordance with
Rule 14a-8
and received by the Secretary of the Company no later than
December 23, 2009.
Under the Companys By-Laws, if a stockholder wants to
submit a proposal for next years Annual Meeting of
Stockholders under
Rule 14a-8,
or wants to nominate candidates for election as directors at an
Annual Meeting of Stockholders, the stockholder must provide
timely notice of his or her intention in writing. To be timely,
a stockholders notice must be delivered to the Secretary,
at the Companys principal executive offices, not less than
90 days nor more than 120 days prior to the first
anniversary of the date of the previous years Annual
Meeting of Stockholders. However, if no Annual Meeting of
Stockholders was held in the previous year or the date of the
Annual Meeting of Stockholders has been changed to be more than
30 calendar days from the time of the previous years
annual meeting, then a proposal shall be received no later than
the close of business on the tenth day following the date on
which notice of the date of the meeting was mailed or a public
announcement was made. Only the Board of Directors or the
Nominating and Corporate Governance Committee thereof may
nominate candidates for election at a special meeting of the
stockholders. The Companys By-Laws also specify
requirements as to the form and content of a stockholders
notice. The Company will not entertain any proposals or
nominations that do not meet these requirements.
Annual
Report
The Companys Annual Report to Stockholders, including the
Companys audited financial statements for the year ended
December 31, 2008, is available at the Companys web
site at
www.inhibitex.com
, or can be mailed upon request
with this proxy statement to all stockholders of record as of
the close of business on April 17, 2009.
ALL STOCKHOLDERS ARE URGED TO VOTE TELEPHONICALLY OR OVER THE
INTERNET, OR COMPLETE, SIGN AND RETURN THE ACCOMPANYING PROXY
CARD IN THE ENCLOSED ENVELOPE.
By Order of the Board of Directors,
Russell H. Plumb
Secretary
22
|
|
|
|
|
PROXY
|
|
INHIBITEX, INC.
|
|
COMMON STOCK
|
PROXY
SOLICITED ON BEHALF OF THE BOARD OF
DIRECTORS OF THE COMPANY FOR THE ANNUAL MEETING OF
STOCKHOLDERS
June 9, 2009
The undersigned hereby constitutes and appoints RUSSELL H. PLUMB
and JOSEPH M. PATTI, and each of them with full power of
substitution, attorneys and proxies to represent and to vote all
of the shares of common stock, par value $0.001 per share (the
Common Stock), of INHIBITEX, INC. that the
undersigned would be entitled to vote, with all powers the
undersigned would possess if personally present, at the Annual
Meeting of the Stockholders of INHIBITEX, INC., to be held at
8:30 a.m. local time on June 9, 2009 at
Inhibitexs corporate headquarters at 9005 Westside
Parkway, Atlanta, Georgia 30009, and at any adjournment or
postponement thereof, on all matters coming before said meeting:
|
|
1.
|
ELECTION OF DIRECTORS. Nominees: Gabriele M. Cerrone and Russell
H. Plumb
|
(Mark only one of the following boxes.)
|
|
|
|
|
|
|
o
|
|
VOTE FOR both nominees listed above, except vote withheld as to
the following nominee (if
any):
|
|
o
|
|
VOTE WITHHELD from all nominees.
|
|
|
2.
|
To approve an amendment to the Companys Eighth Amended and
Restated Certificate of Incorporation (the Certificate of
Incorporation) to increase the Companys authorized
Common Stock from 75,000,000 shares to
150,000,000 shares.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
o
|
|
VOTE FOR the amendment to the Companys Certificate of
Incorporation
|
|
o
|
|
VOTE AGAINST the amendment to the Companys Certificate of
Incorporation
|
|
o
|
|
ABSTAIN from voting for the amendment to the Companys
Certificate of Incorporation
|
|
|
|
|
|
|
2.
|
In their discretion, upon any other business that may properly
come before the meeting or any adjournment or postponement
thereof.
|
(Continue and sign on other side)
(Continued from other side)
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER
DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER.
IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR THE
ELECTION AS DIRECTORS OF THE NOMINEES OF THE BOARD OF DIRECTORS
SET FORTH AND FOR THE AMENDMENT TO THE COMPANYS
CERTIFICATE OF INCORPORATION TO INCREASE THE COMPANYS
AUTHORIZED COMMON STOCK FROM 75,000,000 SHARES TO 150,000,000
SHARES.
The undersigned acknowledges receipt of the accompanying Proxy
Statement dated April 27, 2009.
Dated:
,
2009
Signature of Stockholder(s)
(When signing as attorney, trustee,
executor, administrator, guardian, corporate officer,
etc.,please give full title. If there is more than one trustee,
all should sign. Joint owners must each sign.) Please date and
sign exactly as name appears above.
I
plan
o
I
do not
plan
o
to attend the Annual Meeting.
Inhibitex, Inc. (MM) (NASDAQ:INHX)
Historical Stock Chart
From Jun 2024 to Jul 2024
Inhibitex, Inc. (MM) (NASDAQ:INHX)
Historical Stock Chart
From Jul 2023 to Jul 2024