UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_____________
FORM
8-K
_____________
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
report (Date of earliest event reported): September 14,
2009
Keryx
Biopharmaceuticals, Inc.
(Exact
Name of Registrant as Specified in Charter)
Delaware
(State
or Other Jurisdiction
of
Incorporation)
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000-30929
(Commission
File Number)
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13-4087132
(IRS
Employer Identification No.)
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750
Lexington Avenue
New
York, New York 10022
(Address
of Principal Executive Offices)
(212)
531-5965
(Registrant's
telephone number, including area code)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
£
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Written
communications pursuant to Rule 425 under the Securities
Act.
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£
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Soliciting
material pursuant to Rule 14a-12 under the Exchange
Act.
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£
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Pre-commencement
communications pursuant to Rule 14d-2b under the Exchange
Act.
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£
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange
Act.
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Item
5.02. Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
(e) On
September 14, 2009, Keryx Biopharmaceuticals, Inc. (“Keryx”) entered in an
employment agreement with Ron Bentsur, its Chief Executive
Officer. The agreement terminates on May 20, 2012, provided, however,
that Mr. Bentsur’s opportunity to earn the milestone awards described below will
be effective until May 20, 2014, subject to certain early termination
events.
Under the employment agreement, Mr.
Bentsur’s base salary will be equal to $300,000 per year, which amount will be
reviewed annually by the Compensation Committee of the Board of Directors (the
“Compensation Committee”) and may be increased from year to year or decreased in
an amount up to 10% in the aggregate. Mr. Bentsur also is eligible to
receive an annual bonus, not to exceed 75% of his base salary, if certain
performance objectives agreed to by the Compensation Committee and
Mr. Bentsur are met.
On May 20, 2009, Mr. Bentsur was
granted an option to purchase 600,000 shares of Keryx common stock, at an
exercise price of $0.35 (the “Stock Option Grant”). The Stock Option
Grant was issued as an inducement award and was not granted under Keryx’s
shareholder-approved incentive plan. The Stock Option Grant will vest
in equal installments on each of May 20, 2010; May 20, 2011; May 20, 2012; and
May 20, 2013, conditioned upon Mr. Bentsur’s continuing employment, and subject
to other terms and conditions set forth in the option award
agreement.
Mr.
Bentsur is eligible for additional stock-based awards under Keryx’s long-term
incentive plan, as determined by the Compensation Committee. In
addition, Mr. Bentsur has the
opportunity to earn certain milestone awards as follows:
(1) 100,000 shares of restricted stock will
be granted to Mr. Bentsur upon the achievement of a $1.00 share price
of Keryx’s common stock for 120 consecutive days. Such restricted
stock will vest in equal installments over each of the first three
anniversaries of the date of grant provided that Mr. Bentsur remains an employee
of Keryx during such vesting period, or immediately upon achievement of
milestone #2.
(2) 250,000 shares of restricted
stock will be granted to Mr. Bentsur
upon the achievement of a $2.50 share price
of Keryx’s common stock for 120 consecutive days. Such restricted
stock will vest in equal installments over each of the first three
anniversaries of the date of grant provided that Mr. Bentsur remains an employee
of Keryx during such vesting period.
(3) 400,000 shares of restricted
stock will be granted to Mr. Bentsur
upon the first to occur of (a) Keryx’s
filing of an accepted new drug application (an “NDA”) with the U.S. Food and
Drug Administration for Zerenex or Perifosine, or (b) Keryx’s outlicensing of
Zerenex or Perifosine in the U.S. to a third party. Such restricted
stock will vest in equal installments over each of the first three
anniversaries the date of grant provided that Mr. Bentsur remains an employee of
Keryx during such vesting period. This milestone #3 may be achieved
with respect to NDAs or qualifying outlicenses for multiple indications of the
same product, but not for subsequent outlicenses of the product relating to an
indication for which the milestone is met.
(4) 500,000 shares of restricted
stock will be granted to Mr. Bentsur,
upon the first to occur of (a) Keryx’s first
commercial sale of Zerenex or Perifosine in the U.S. off an approved NDA, (b)
Keryx’s receipt of the first royalty upon the commercial sale of Zerenex or
Perifosine in the U.S. by a partner to whom Keryx has sold exclusive or
non-exclusive commercial rights, or (c) Keryx’s complete outlicensing of the
entire product rights of Zerenex or Perifosine in the
U.S. Such restricted stock will vest on the first anniversary
of the date of grant provided that Mr. Bentsur remains an employee of Keryx
during such vesting period.
(5) 100,000 shares of restricted
stock will be granted to Mr. Bentsur
upon each event of Keryx’s outlicensing
Zerenex in a foreign market, other than Japan, resulting in a greater than $10
million non-refundable cash payment to Keryx with a gross deal value to Keryx of
at least $50 million. Such restricted stock will vest in equal
installments over each of the first three anniversaries the date of grant
provided that Mr. Bentsur remains an employee of Keryx during such vesting
period.
Either
party may terminate Mr. Bentsur’s employment at any time, provided however, that
if such termination occurs without cause or for good reason, Mr. Bentsur will
receive a severance payment equal to (A) 25% of his then-current base salary if
the date of termination occurs prior to May 20, 2010 or (B) 50% of his
then-current base salary if the date of termination occurs on or following May
20, 2010. Additionally, in the event of such termination, any vested
portion of the Stock Option Grant will remain exercisable for a period of one
year (or, if earlier, the normal expiration date of the Stock Option Grant), and
any outstanding shares of restricted stock granted to Mr. Bentsur as a milestone
bonus by reason of the achievement of a milestone prior to the date of
termination will become fully vested and non-forfeitable as of the date of
termination. Mr. Bentsur’s opportunity to earn milestone bonuses with
respect to any milestone condition which has not been met as of the date of
termination will continue for a period of three months after
the date of termination and, to the extent that a
milestone is achieved during such three-month period, the stock relating to such
milestone will be issued to Mr. Bentsur as fully-vested shares, rather than
restricted stock, or, in Keryx’s sole discretion, it may pay Mr. Bentsur an
amount in cash equal to the value of such shares. The employment
agreement also provides that if any payments or benefits would be subject to the
excise tax imposed on “parachute payments” under Section 4999 of the Internal
Revenue Code, the payments will be limited to the maximum amount that could be
paid without triggering the excise tax, provided that such cut-back would
produce a greater net benefit to Mr. Bentsur than if he had paid the excise
tax.
Upon the
occurrence of a change in control (as defined in the employment agreement), and
except with respect to any awards (or unearned milestone opportunities) assumed
by the surviving entity or otherwise equitably converted or substituted in
connection with the change in control:
·
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any
outstanding and unvested portion of the Stock Option Grant will
immediately vest and become fully exercisable;
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·
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any
restricted stock granted to Mr. Bentsur as a milestone award by reason of
the achievement of a milestone prior to the date of the change in control
will become fully vested and non-forfeitable;
and
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·
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any
unearned milestone award will expire without consideration; provided that
Keryx will grant to Mr. Bentsur, immediately prior to the effective time
of the change in control, (A) 400,000 shares of fully-vested common stock
in the event that he has not, as of such time, previously received any
milestone awards under milestone (3) (as set forth above), and (B) 500,000
shares of vested common stock in the event that he has not, as of such
time, previously received any milestone awards under milestone (4) (as set
forth above), or, in the discretion of Keryx or its successor, the cash
equivalent of (A) and (B).
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In the event
that the Stock Option Grant, any earned milestone award, or any
unearned milestone opportunity is assumed by the surviving entity or otherwise
equitably converted or substituted in connection with a
change in control, then if, within one year after the
effective date of the change in control, Mr.
Bentsur’s employment is terminated without cause or Mr. Bentsur resigns for good
reason:
·
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any
outstanding and unvested portion of the Stock Option Grant will
become fully vested and exercisable and will remain exercisable for a
period of one year following Mr. Bentsur’s date of
termination;
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·
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any
restricted stock granted to Mr. Bentsur as an earned milestone award by
reason of the achievement of a milestone prior to the date of the his
termination of employment will become fully vested and non-forfeitable;
and
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·
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any unearned milestone
opportunities relating to milestones #1, #2, or #5 (as set forth above)
will continue for a
period of three months after Mr. Bentsur’s date of termination,
and
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·
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any unearned milestone
opportunities relating to milestones #3 and #4 (as set forth above) will
continue for a period of one year after Mr. Bentsur’s date of
termination.
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To the extent that a milestone is
achieved during such three-month or one-year period above, as the case may be,
the stock relating to such milestone will be issued to Mr. Bentsur as
fully-vested shares, rather than restricted stock. Any unearned milestone
opportunities which remain unearned at the end of such three-month or one-year
period, as the case may be, will expire without consideration.
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits.
10.1
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Employment
Agreement with Ron Bentsur dated September 14,
2009.
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
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Keryx
Biopharmaceuticals, Inc.
(Registrant)
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Date: September
16, 2009
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By:
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/s/ James
F. Oliviero |
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James
F. Oliviero
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Chief
Financial Officer
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INDEX
TO EXHIBITS
Exhibit Number
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Description
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10.1
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Employment
Agreement with Ron Bentsur dated September 14,
2009.
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