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ITMN > SEC Filings for ITMN > Form 8-K on 5-Jun-2013All Recent SEC Filings

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Form 8-K for INTERMUNE INC


5-Jun-2013

Change in Directors or Principal Officers, Amendments to Articles of Inc. or Bylaws


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On May 30, 2013, InterMune, Inc. ("InterMune" or the "Company"), held its 2013 Annual Meeting of Stockholders (the "Annual Meeting"). At the Annual Meeting, InterMune's stockholders approved the amendment and restatement of the InterMune, Inc. Amended and Restated 2000 Equity Incentive Plan (the "Incentive Plan" and, as amended and restated, the "Restated Plan"). On March 13, 2013, InterMune's Board of Directors (the "Board") approved the Restated Plan, subject to stockholder approval, which became effective on May 30, 2013 (the "Effective Date").

The Restated Plan is substantially similar to the current Incentive Plan, except that:

• The Restated Plan increases the number of shares of common stock authorized for issuance from 15,398,320 under the Incentive Plan to 21,398,320 shares, which represents an increase of 6,000,000 shares.

• The Restated Plan provides that the number of shares available for issuance will be reduced by one share for each share of common stock issued pursuant to a stock option and 1.25 shares for each share of common stock issued pursuant to a full value award (i.e., a stock purchase award or stock bonus award) instead of 1.67 shares under the Incentive Plan.

• The Restated Plan provides that the prohibition on repricing stock options without prior stockholder approval also applies to prohibit the cancellation or acceptance of any outstanding stock option under the Restated Plan in exchange for cash or other stock awards under the Restated Plan.

The following is a summary of the features of the Restated Plan:

Description of Restated Plan. The Restated Plan provides for the grant of incentive stock options, nonstatutory stock options, stock bonus awards and stock purchase awards (collectively "awards") to employees, directors and consultants. Incentive stock options granted under the Restated Plan are intended to qualify as "incentive stock options" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). Nonstatutory stock options granted under the Restated Plan are not intended to qualify as incentive stock options under the Code.

Shares Available for Issuance under the Restated Plan. As of the Effective Date, up to 21,398,320 shares of the Company's common stock were available for issuance under the Restated Plan. If awards under the Restated Plan expire or otherwise terminate without being exercised, the shares of common stock not acquired pursuant to such awards again become available for issuance under the Restated Plan. If the Company reacquires unvested stock issued under the Restated Plan, the reacquired stock will not be available for issuance under the Restated Plan, and if shares subject to an award are not delivered to a participant because the shares are withheld for the payment of taxes or the award is exercised through the reduction of the number of shares subject to the award (i.e., a "net exercise"), the number of shares not delivered to the participant will not remain available for issuance under the Restated Plan. In addition, the issuance of each single share of common stock through the granting of a stock purchase award or stock bonus award will reduce the number of shares available for issuance under the Restated Plan by the equivalent of 1.25 shares of common stock. Likewise, the forfeiture, expiration or other termination without being exercised a stock purchase award or stock bonus award will increase the number of shares available for issuance under the Restated Plan by the equivalent of 1.25 shares of common stock. The aggregate number of shares of common stock issuable under the Restated Plan pursuant to the exercise of all incentive stock options may not exceed 10,000,000 shares.


Administration. The Board administers the Restated Plan. Subject to the provisions of the Restated Plan, the Board has the power to construe and interpret the Restated Plan and to determine the persons to whom and the dates on which awards will be granted, the number of shares of common stock to be subject to each award, the time or times during the term of each award within which all or a portion of such award may be exercised, the exercise price, the type of consideration and other terms of the award. The Board has the power to delegate administration of the Restated Plan to a committee, composed of one or more members of the Board. The Board may also delegate to a committee of one or more officers of the Company the authority to grant or amend options to non-executive committee level employees. The Board has delegated administration of the Restated Plan to the Compensation Committee of the Board.

General Terms of Stock Options. The Board or its duly authorized committee determines the terms of each stock option granted under the Restated Plan, including the exercise price, the form of consideration paid on exercise, the vesting schedule, restrictions on transfer and the term. The exercise price of a stock option may not be less than 100% of the fair market value of the underlying share on the date of grant (110% in the case of incentive stock options granted to certain significant stockholders), except with respect to certain substitute options granted in connection with a corporate transaction. The term of a stock option may not be longer than seven years (or five years in the case of incentive stock options granted to certain significant stockholders). Vesting conditions determined by the plan administrator applied to stock options, may include continued service, performance and/or other conditions.

General Terms of Performance Awards. All awards may be granted as performance awards, meaning that any such award will be subject to vesting and/or payment based on the attainment of specified performance goals. The plan administrator will determine whether performance awards are intended to constitute "qualified performance-based compensation" within the meaning of Section 162(m) of the Code.

Awards to Non-Employee Directors. The Restated Plan provides that the Board may grant stock awards to non-employee directors pursuant to a written non-discretionary formula established by the Board, which will set forth the type of stock award(s) to be granted to non-employee directors, the number of shares of common stock to be subject to such awards, and the conditions on which such awards will be granted, become exercisable and/or payable and expire.

Certain Transactions. In the event of (i) a sale, lease or other disposition of all or substantially all of the securities or assets of the Company, (ii) a merger or consolidation in which the Company is not the surviving corporation, or (iii) a reverse merger in which the Company is the surviving corporation but . . .



Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

At the Annual Meeting, InterMune's stockholders approved an amendment to the Company's Amended and Restated Certificate of Incorporation to increase the authorized number of shares of common stock from 100,000,000 shares to 175,000,000 shares (the "Charter Amendment"). On May 31, 2013, the Charter Amendment was filed with the Secretary of State of the State of Delaware and became effective.

A copy of the as-filed Charter Amendment is attached as Exhibit 3.1 to this Current Report on Form 8-K.



Item 5.07 Submission of Matters to a Vote of Security Holders.

On May 30, 2013, InterMune held its Annual Meeting. Only stockholders of record as of the close of business on April 2, 2013, the record date for the Annual Meeting, were entitled to vote at the Annual Meeting. As of the record date, 81,619,164 shares of the Company's common stock were outstanding and entitled to vote at the Annual Meeting. The tabulation of the stockholder votes on each proposal brought before the Annual Meeting is as follows:

Proposal 1. The election of three directors to hold office until the 2016 annual meeting of stockholders or until his respective successor is elected:

                                                                          Broker
      Nominee                     Votes For        Votes Withheld       Non-Votes
      Jean-Jacques Bienaimé        56,114,561              755,076       13,200,998
      David S. Kabakoff, Ph.D.     56,242,777              626,860       13,200,998
      Daniel G. Welch              54,224,489            2,645,148       13,200,998

Proposal 2. The ratification of the selection, by the Audit and Compliance Committee of the Board of Directors, of Ernst & Young LLP as the independent registered public accounting firm of the Company for the fiscal year ending December 31, 2013:

Votes For Votes Against Abstentions 69,805,208 238,298 27,129

As a routine proposal under applicable rules, no broker non-votes were recorded in connection with this proposal.


Proposal 3. The approval of an amendment to the Company's Amended and Restated Certificate of Incorporation to increase the authorized number of shares of common stock from 100,000,000 shares to 175,000,000 shares:

                                                             Broker
                 Votes For    Votes Against   Abstentions   Non-Votes
                 68,821,861     1,200,574       48,200          0

Proposal 4. The approval of the InterMune, Inc. Amended and Restated 2000 Equity Incentive Plan, which, among other things, increased the number of shares authorized for issuance under the current plan from 15,398,320 to 21,398,320 shares:

                                                             Broker
                Votes For    Votes Against   Abstentions   Non-Votes
                48,666,707     8,162,435       40,495      13,200,998

Proposal 5. The non-binding advisory vote to approve named executive officer compensation:

                                                             Broker
                Votes For    Votes Against   Abstentions   Non-Votes
                56,327,939      485,521        56,177      13,200,998



Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.       Description

 3.1              Certificate of Amendment of Amended and Restated Certificate of
                  Incorporation of Registrant.

10.1              InterMune, Inc. Amended and Restated 2000 Equity Incentive Plan.

10.2              InterMune, Inc. Stock Bonus Award Terms and Conditions under the
                  Amended and Restated 2000 Equity Incentive Plan (Non-Employee
                  Directors).

10.3              InterMune, Inc. Stock Bonus Award Terms and Conditions under the
                  Amended and Restated 2000 Equity Incentive Plan (Employees).


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