EX-10.1






Exhibit 10.1




BIODEL INC.

2005 NON-EMPLOYEE DIRECTORS’ STOCK OPTION PLAN

ADOPTED MARCH 20, 2007

APPROVED BY STOCKHOLDERS MARCH 20, 2007

AMENDED AND RESTATED MARCH 3, 2009




1. PURPOSES.




     (A) AMENDMENT AND RESTATEMENT. The Plan amends and restates the Biodel Inc. 2005 Non-Employee
Directors’ Stock Option Plan adopted March 20, 2007 (the “PRIOR PLAN”). All outstanding awards
granted under the Prior Plan shall remain subject to the terms of the Prior Plan. All options
granted subsequent to the effective date of this Plan shall be subject to the terms of this Plan.



     (B) ELIGIBLE OPTION RECIPIENTS. The persons eligible to receive Options are the Non-Employee
Directors of the Company.



     (C) AVAILABLE OPTIONS. The purpose of the Plan is to provide a means by which Non-Employee
Directors may be given an opportunity to benefit from increases in value of the Common Stock
through the granting of Nonstatutory Stock Options.



     (D) GENERAL PURPOSE. The Company, by means of the Plan, seeks to retain the services of its
current Non-Employee Directors, to secure and retain the services of new Non-Employee Directors and
to provide incentives for such persons to exert maximum efforts for the success of the Company and
its Affiliates.



2. DEFINITIONS.




     (A) “AFFILIATE” means any parent corporation or subsidiary corporation of the Company, whether
now or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of
the Code.



     (B) “ANNUAL GRANT” means an Option granted annually to all Non-Employee Directors who meet the
specified criteria pursuant to Section 6(b).



     (C) “ANNUAL MEETING” means the annual meeting of the stockholders of the Company.



     (D) “BOARD” means the Board of Directors of the Company.



     (E) “CAPITALIZATION ADJUSTMENT” has the meaning ascribed to that term in Section 11(a).



     (F) “CODE” means the Internal Revenue Code of 1986, as amended.



 









 





     (G) “COMMITTEE” means a committee of one or more members of the Board appointed by the Board
in accordance with Section 3(c).



     (H) “COMMITTEE GRANT” means an Option granted annually to all Non-Employee Directors who meet
the specified criteria pursuant to Section 6(c).



     (I) “COMMON STOCK” means the common stock of the Company.



     (J) “COMPANY” means Biodel Inc., a Delaware corporation.



     (K) “CONSULTANT” means any person, including an advisor, who (i) is engaged by the Company or
an Affiliate to render consulting or advisory service and is compensated for such service or (ii)
is serving as a member of the Board of Directors of an Affiliate and is compensated for such
service. However, service solely as a Director, or payment of a fee for such service, shall not
cause a Director to be considered a “Consultant” for purposes of the Plan.



     (L) “CONTINUOUS SERVICE” means that the Optionholder’s service with the Company or an
Affiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. The
Optionholder’s Continuous Service shall not be deemed to have terminated merely because of a change
in the capacity in which the Optionholder renders service to the Company or an Affiliate as an
Employee, Consultant or Director or a change in the entity for which the Optionholder renders such
service, provided that there is no interruption or termination of the Optionholder’s Continuous
Service. For example, a change in status from a Non-Employee Director of the Company to a
Consultant of an Affiliate or an Employee of the Company will not constitute an interruption of
Continuous Service. The Board or the chief executive officer of the Company, in that party’s sole
discretion, may determine whether Continuous Service shall be considered interrupted in the case of
any leave of absence approved by that party, including sick leave, military leave or any other
personal leave. Notwithstanding the foregoing, a leave of absence shall be treated as Continuous
Service for purposes of vesting in an Option only to such extent as may be provided in the
Company’s leave of absence policy or in the written terms of the Optionholders’s leave of absence.



     (M) “CORPORATE TRANSACTION” means the occurrence, 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
discretion, of the consolidated assets of the Company and its Subsidiaries;




          (II) a sale or other disposition of at least ninety percent (90%) of the outstanding
securities of the Company;




          (III) a merger, consolidation or similar transaction following which the Company is not the
surviving corporation; or




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          (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.




     (N) “DIRECTOR” means a member of the Board of Directors of the Company.



     (O) “DISABILITY” means the inability of a person, in the opinion of a qualified physician
acceptable to the Company, to perform the major duties of that person’s position with the Company
or an Affiliate of the Company because of the sickness or injury of the person.



     (P) “EMPLOYEE” means any person employed by the Company or an Affiliate. However, service
solely as a Director, or payment of a fee for such service, shall not cause a Director to be
considered an “Employee” for purposes of the Plan.



     (Q) “ENTITY” means a corporation, partnership or other entity.



     (R) “EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended.



     (S) “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 the Nasdaq
National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or market (or the exchange or market with the greatest volume of trading in
the Common Stock) on the last market trading day prior to the day of determination, as reported in
The Wall Street Journal or such other source as the Board deems reliable.




          (II) In the absence of such markets for the Common Stock, the Fair Market Value shall be
determined in good faith by the Board.




     (T) “INITIAL GRANT” means an Option granted to a Non-Employee Director who meets the specified
criteria pursuant to Section 6(a).



     (U) “IPO DATE” means the effective date of the initial public offering of the Common Stock.



     (V) “NON-EMPLOYEE DIRECTOR” means a Director who is not an Employee.



     (W) “NONSTATUTORY STOCK OPTION” means an Option not intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.



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     (X) “OFFICER” means a person who is an officer of the Company within the meaning of Section 16
of the Exchange Act and the rules and regulations promulgated thereunder.



     (Y) “OPTION” means a Nonstatutory Stock Option granted pursuant to the Plan.



     (Z) “OPTION AGREEMENT” means a written agreement between the Company and an Optionholder
evidencing the terms and conditions of an individual Option grant. Each Option Agreement shall be
subject to the terms and conditions of the Plan.



     (AA) “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.



     (BB) “OWN,” “OWNED,” “OWNER,” “OWNERSHIP” A person or Entity shall 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.



     (CC) “PLAN” means this Biodel Inc. 2005 Non-Employee Directors’ Stock Option Plan.



     (DD) “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.



     (EE) “SECURITIES ACT” means the Securities Act of 1933, as amended.



     (FF) “SUBSIDIARY” means, with respect to the Company, (i) any corporation of which more than
fifty percent (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 shall 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 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 fifty percent
(50%).



3. ADMINISTRATION.




     (A) ADMINISTRATION BY BOARD. The Plan shall be administered by the Board unless and until the
Board delegates administration of the Plan to a Committee, as provided in Section 3(c).



     (B) POWERS OF BOARD. The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:



          (I) To determine the provisions of each Option to the extent not specified in the Plan.




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          (II) To construe and interpret the Plan and Options granted under it, and to establish, amend
and revoke rules and regulations for its administration. The Board, in the exercise of this power,
may correct any defect, omission or inconsistency in the Plan or in any Option Agreement, in a
manner and to the extent it shall deem necessary or expedient to make the Plan fully effective.




          (III) To effect, at any time and from time to time, with the consent of any adversely affected
Optionholder, (1) the reduction of the exercise price of any outstanding Option under the Plan, (2)
the cancellation of any outstanding Option under the Plan and the grant in substitution therefor of
(A) a new Option under the Plan or another equity plan of the Company covering the same or a
different number of shares of Common Stock, (B) cash and/or (C) other valuable consideration (as
determined by the Board, in its sole discretion), or (3) any other action that is treated as a
repricing under generally accepted accounting principles.




          (IV) To amend the Plan or an Option as provided in Section 12.




          (V) To terminate or suspend the Plan as provided in Section 13.




          (VI) 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.




     (C) DELEGATION TO COMMITTEE. The Board may delegate administration of the Plan to a Committee
or Committees of one or more members of the Board, and the term “COMMITTEE” shall apply to any
person or persons to whom such authority has been delegated. If administration is delegated to a
Committee, the Committee shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board, including the power to delegate to a subcommittee any of the
administrative powers the Committee is authorized to exercise (and references in this Plan to the
Board shall thereafter be to the Committee or subcommittee), subject, however, to such resolutions,
not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board.
The Board may abolish the Committee at any time and revest in the Board the administration of the
Plan.



     (D) EFFECT OF BOARD’S DECISION. All determinations, interpretations and constructions made by
the Board in good faith shall not be subject to review by any person and shall be final, binding
and conclusive on all persons.



4. SHARES SUBJECT TO THE PLAN.




     (A) SHARE RESERVE. Subject to the provisions of Section 11(a) relating to Capitalization
Adjustments, the shares of Common Stock that may be issued pursuant to Options shall not exceed in
the aggregate Five Hundred Thousand (500,000) shares of Common Stock.



     (B) REVERSION OF SHARES TO THE SHARE RESERVE. If any Option shall for any reason expire or
otherwise terminate, in whole or in part, without having been exercised in full, the shares of
Common Stock not acquired under such Option shall revert to and again become



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available for issuance under the Plan. If any shares subject to an Option are not delivered to an
Optionholder because such shares are withheld for the payment of taxes or the Option is exercised
through a reduction of shares subject to the Option (i.e., “net exercised”), the number of shares
that are not delivered to the Optionholder as a result thereof shall remain available for issuance
under the Plan. If the exercise price of an Option is satisfied by tendering shares of Common Stock
held by the Optionholder (either by actual delivery or attestation), then the number of shares so
tendered shall remain available for issuance under the Plan.



     (C) SOURCE OF SHARES. The shares of Common Stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.


5. ELIGIBILITY. The Options, as set forth in Section 6, automatically shall be granted under
the Plan to all Non-Employee Directors who meet the criteria specified in Section 6.




6. NON-DISCRETIONARY GRANTS.




     (A) INITIAL GRANTS. Without any further action of the Board, each person who is serving as a
Non-Employee Director on the IPO Date automatically shall, on the IPO Date, be granted an Initial
Grant to purchase twenty five thousand (25,000) shares of Common Stock on the terms and conditions
set forth herein. Additionally, without any further action of the Board, each person who after the
IPO Date is elected or appointed for the first time to be a Non-Employee Director automatically
shall, upon the date of his or her initial election or appointment to be a Non-Employee Director,
be granted an Initial Grant to purchase twenty five thousand (25,000) shares of Common Stock on the
terms and conditions set forth herein.



     (B) ANNUAL GRANTS. Without any further action of the Board, on the date of each Annual
Meeting, commencing with the Annual Meeting next following the IPO Date, each person who is then a
Non-Employee Director automatically shall be granted an Annual Grant to purchase twenty thousand
(20,000) shares of Common Stock on the terms and conditions set forth herein; provided, however,
that if the person has not been serving as a Non-Employee Director for the entire period since the
preceding Annual Meeting, then the number of shares subject to such Annual Grant shall be reduced
pro rata for each full quarter prior to the date of grant during which such person did not serve as
a Non- Employee Director.


7. OPTION PROVISIONS. Each Option shall be in such form and shall contain such terms and
conditions as required by the Plan. Each Option shall contain such additional terms and conditions,
not inconsistent with the Plan, as the Board shall deem appropriate. Each Option shall include
(through incorporation of provisions hereof by reference in the Option or otherwise) the substance
of each of the following provisions:




     (A) TERM. No Option shall be exercisable after the expiration of ten (10) years from the date
on which it was granted.



     (B) EXERCISE PRICE. The exercise price of each Option shall be one hundred percent (100%) of
the Fair Market Value of the Common Stock subject to the Option on the date the Option is granted.



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     (C) CONSIDERATION. The purchase price of Common Stock acquired pursuant to an Option shall be
paid, to the extent permitted by applicable law, either (i) in cash at the time the
Option is exercised or (ii) at the discretion of the Board either at the
time of the grant of the Option or subsequent thereto (1) by delivery to the Company of other
Common Stock at the time the Option is exercised, (2) by a “net exercise” of the Option (as further
described below), (3) pursuant to a program developed under Regulation T as promulgated by the
Federal Reserve Board that, prior to the issuance of Common Stock, 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 or (4) in any other form of legal
consideration that may be acceptable to the Board. Unless otherwise specifically provided in the
Option, the purchase price of Common Stock acquired pursuant to an Option that is paid by delivery
to the Company of other Common Stock acquired, directly or indirectly from the Company, shall be
paid only by shares of the Common Stock of the Company that have been held for more than six (6)
months (or such longer or shorter period of time required to avoid a charge to earnings for
financial accounting purposes). In the case of a “net exercise” of an Option, the Company will not
require a payment of the exercise price of the Option from the Participant but will reduce the
number of shares of Common Stock issued upon the exercise by the largest number of whole shares
that has a Fair Market Value that does not exceed the aggregate exercise price. With respect to any
remaining balance of the aggregate exercise price, The Company shall accept a cash payment from the
Participant. Shares of Common Stock will no longer be outstanding under an Option (and will
therefore not thereafter be exercisable) following the exercise of such Option to the extent of (i)
shares used to pay the exercise price of an Option under a “net exercise”, (ii) shares actually
delivered to the Participant as a result of such exercise and (iii) shares withheld for purposes of
tax withholding.



     (D) TRANSFERABILITY. An Option is transferable by will or by the laws of descent and
distribution. An Option also may be transferable upon written consent of the Company if, at the
time of transfer, a Form S-8 registration statement under the Securities Act is available for the
exercise of the Option and the subsequent resale of the underlying securities. In addition, an
Optionholder may, by delivering written notice to the Company, in a form provided by or otherwise
satisfactory to the Company, designate a third party who, in the event of the death of the
Optionholder, shall thereafter be entitled to exercise the Option.



     (E) VESTING. The total number of shares of Common Stock subject to an Option Agreement shall
vest and therefore become exercisable in twelve (12) equal periodic installments on the last day of
each month beginning on the date of grant.



     (F) TERMINATION OF CONTINUOUS SERVICE. In the event an Optionholder’s Continuous Service
terminates for any reason, the Optionholder may exercise his or her Option (to the extent that the
Optionholder was entitled to exercise it as of the date of termination) but only within such period
of time ending on the earlier of (i) the date thirty-six (36) months following the termination of
the Optionholder’s Continuous Service or (ii) the expiration of the term of the Option as set forth
in the Option Agreement. If, after termination, the Optionholder does not exercise his or her
Option within the time specified in the Option Agreement, the Option shall terminate.



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8. SECURITIES LAW COMPLIANCE. The Company shall seek to obtain from each regulatory commission
or agency having jurisdiction over the Plan such authority as may be required to grant Options and
to issue and sell shares of Common Stock upon exercise of the Options; provided, however, that this
undertaking shall not require the Company to register under the Securities Act the Plan, any Option
or any Common Stock issued or issuable pursuant to any such Option. If, after reasonable efforts,
the Company is unable to obtain from any such regulatory commission or agency the authority which
counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the
Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock
upon exercise of such Options unless and until such authority is obtained.



9. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of Common Stock pursuant to Options shall
constitute general funds of the Company.




10. MISCELLANEOUS.




     (A) STOCKHOLDER RIGHTS. No Optionholder shall 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 such Option unless
and until such Optionholder has satisfied all requirements for exercise of the Option pursuant to
its terms.



     (B) NO SERVICE RIGHTS. Nothing in the Plan or any instrument executed or Option granted
pursuant thereto shall confer upon any Optionholder any right to continue to serve the Company as a
Non-Employee Director or shall 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 Consultant’s 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.



     (C) INVESTMENT ASSURANCES. The Company may require an Optionholder, as a condition of
exercising or acquiring Common Stock under any Option, (i) to give written assurances satisfactory
to the Company as to the Optionholder’s 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 he or she is capable of
evaluating, alone or together with the purchaser representative, the merits and risks of exercising
the Option; and (ii) to give written assurances satisfactory to the Company stating that the
Optionholder is acquiring the Common Stock subject to the Option for the Optionholder’s 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, shall be
inoperative if (1) the issuance of the shares of Common Stock upon the exercise or acquisition of
Common Stock under the Option has been registered under a then currently effective registration
statement under the Securities Act or (2) 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



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Company may, upon advice of counsel to the Company, place legends 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.



     (D) WITHHOLDING OBLIGATIONS. To the extent provided by the terms of an Option Agreement, the
Company may in its sole discretion, satisfy any federal state or local tax withholding obligation
relating to an Option by any of the following means (in addition to the Company’s right to withhold
from any compensation paid to the Participant by the Company) or by a combination of such means:
(i) causing the Optionholder to tender a cash payment; (ii) withholding shares of Common Stock from
the shares of Common Stock issued or otherwise issuable to the Optionholder in connection with the
Option; or (iii) via such other method as may be set forth in the Option Agreement.



11. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.




     (A) CAPITALIZATION ADJUSTMENTS. If any change is made in, or other event occurs with respect
to, the Common Stock subject to the Plan, or subject to any Option, without the receipt of
consideration by the Company (through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate structure or other
transaction not involving the receipt of consideration by the Company (each a “CAPITALIZATION
ADJUSTMENT”), the Plan will be appropriately adjusted in the class(es) and maximum number of
securities subject both to the Plan pursuant to Section 4 and to the nondiscretionary Options
specified in Section 6, and the outstanding Options will be appropriately adjusted in the class(es)
and number of securities and price per share of Common Stock subject to such outstanding Options.
The Board shall make such adjustments, and its determination shall be final, binding and
conclusive. (Notwithstanding the foregoing, the conversion of any convertible securities of the
Company shall not be treated as a transaction “without receipt of consideration” by the Company.)



     (B) DISSOLUTION OR LIQUIDATION. In the event of a dissolution or liquidation of the Company,
then all outstanding Options shall terminate immediately prior to the completion of such
dissolution or liquidation.



     (C) CORPORATE TRANSACTION. In the event of a Corporate Transaction, any surviving corporation
or acquiring corporation may assume or continue any or all Options outstanding under the Plan or
may substitute similar stock options for Options outstanding under the Plan (including, but not
limited to, options to acquire the same consideration paid to the stockholders of the Company, as
the case may be, pursuant to the Corporate Transaction). In the event that any surviving
corporation or acquiring corporation does not assume or continue all such outstanding Options or
substitute similar stock options for all such outstanding Options, then with respect to Options
that have been not assumed, continued or substituted, the Options shall terminate if not exercised
(if applicable) at or prior to the effective time of such Corporate Transaction.



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12. AMENDMENT OF THE PLAN AND OPTIONS.




     (A) AMENDMENT OF PLAN. Subject to the limitations, if any, of applicable law, the Board, at
any time and from time to time, may amend the Plan. However, except as provided in Section 11(a)
relating to Capitalization Adjustments, no amendment shall be effective unless
approved by the stockholders of the Company to the extent stockholder approval
is necessary to satisfy the requirements of applicable law.



     (B) STOCKHOLDER APPROVAL. The Board, in its sole discretion, may submit any other amendment to
the Plan for stockholder approval.



     (C) NO IMPAIRMENT OF RIGHTS. Rights under any Option granted before amendment of the Plan
shall not be impaired by any amendment of the Plan unless (i) the Company requests the consent of
the Optionholder and (ii) the Optionholder consents in writing.



     (D) AMENDMENT OF OPTIONS. The Board, at any time, and from time to time, may amend the terms
of any one or more Options, including, but not limited to, amendments to provide terms more
favorable than previously provided in the agreement evidencing an Option, subject to any specified
limits in the Plan that are not subject to Board discretion; provided, however, that the rights
under any Option shall not be impaired by any such amendment unless (i) the Company requests the
consent of the Optionholder and (ii) the Optionholder consents in writing.



13. TERMINATION OR SUSPENSION OF THE PLAN.




     (A) PLAN TERM. The Board may suspend or terminate the Plan at any time. No Options may be
granted under the Plan while the Plan is suspended or after it is terminated.



     (B) NO IMPAIRMENT OF RIGHTS. Suspension or termination of the Plan shall not impair rights and
obligations under any Option granted while the Plan is in effect except with the written consent of
the Optionholder.


14. EFFECTIVE DATE OF PLAN. The Plan shall become effective on the IPO Date, but no Option shall
be exercised unless and until the Plan has been approved by the stockholders of the Company, which
approval shall be within twelve (12) months before or after the date the Plan is adopted by the
Board.



15. CHOICE OF LAW. The law of the state of New York shall govern all questions concerning the
construction, validity and interpretation of this Plan, without regard to such state’s conflict of
laws rules.





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