As filed with the Securities and Exchange Commission on December 23, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
Shire Pharmaceuticals Group plc
(Exact name of registrant as specified in its charter)
England and Wales Not Applicable
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
East Anton
Andover
Hampshire SP10 5RG
England
(Address of Principal Executive Offices)
---------------
Roberts Pharmaceutical Corporation 1996 Equity Incentive Plan
Roberts Pharmaceutical Corporation Incentive Stock Option Plan
(Full title of the plans)
---------------
William A. Nuerge
Shire Richwood Inc.
7900 Tanners Gate Drive
Florence, Kentucky 41042
(Name and address of agent for service)
(606) 282-2100
(Telephone number, including
area code, of agent for service)
---------------
Copy to:
John P. Mitchell, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Offering Amount of
Title of securities to be registered Registered Per Share (1) Price (1) Registration Fee (1)
Ordinary Shares, nominal value
<S> <C> <C> <C> <C>
5p per Ordinary Share .............. 9,168,475 $9.72 $89,117,577 $23,527.04
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------------------
(1) Estimated solely for the purpose of calculating the registration fee,
computed pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, on the basis of the average of the high and low
prices of the registrant's Ordinary Shares as reported on the London
Stock Exchange on December 21, 1999.
<PAGE>
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act") and the Note to Part I of Form S-8.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by Shire Pharmaceuticals Group plc
(the "Company") with the Securities and Exchange Commission (the "Commission")
and are hereby incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 20-F/A for the fiscal year
ended December 31, 1998.
(b) The Company's Reports on Form 6-K dated January 8, 1999, March 12,
1999, March 23, 1999, April 9, 1999, May 12, 1999, May 17, 1999, July 6,
1999, July 27, 1999, August 30, 1999, October 12, 1999, October 22, 1999,
October 26, 1999, October 28, 1999, December 1, 1999 and December 2, 1999.
(c) The description of the Company's Ordinary Shares contained in the
Company's Registration Statement No. 333-90947 on Form F-4, as amended.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Except as hereinafter set forth, there is no charter provision, by-law,
contract, arrangement or statute under which any director or officer of the
Company is insured or indemnified in any manner against any liability which he
may incur in his capacity as such.
Pursuant to Paragraph 141 of the Articles of Association of the Company,
every person who was or is a director, alternate director or secretary of the
Company shall be indemnified out of the assets of the Company for all costs,
charges, losses and liabilities incurred in the proper execution of such
person's duties or the proper exercise of such person's powers, authorities and
discretions.
Under Section 310 of the U.K. Companies Act 1985 of Great Britain, the
Company may not indemnify an officer against any liability that by virtue of any
rule of law would otherwise attach to him in respect of any negligence, default,
breach of duty or breach of trust of which he may be guilty in relation to the
Company, except that under Section 310(3) of the Companies Act, the Company is
not prevented, inter alia, (a) from purchasing and maintaining for any such
officer such insurance against any such liability, or (b) from indemnifying an
officer against any liability incurred by him in defending any proceedings
(whether civil or criminal), in which judgment is given in his favor or he is
acquitted, or in connection with any application in which relief is granted to
him by the court in case of honest and reasonable conduct.
The Company maintains an insurance policy for its directors and officers in
respect of liabilities arising out of any act, error or omission while acting in
their capacities as directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
*4.1 - Roberts Pharmaceutical Corporation 1996 Equity Incentive Plan
*4.2 - Roberts Pharmaceutical Corporation Incentive Stock Option Plan
*5 - Opinion of Slaughter and May as to the legality of the
securities being registered
*23.1 - Consent of Arthur Andersen, Chartered Accountants
*23.2 - Consent of Slaughter and May (included in Exhibit 5)
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<PAGE>
*24 - Power of Attorney is set forth on the signature page of this
Registration Statement
- ----------------------
* Filed herewith.
** Incorporated by reference to the Registration Statement on Form F-1.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made,
if applicable, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporation by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) To file a post-effective amendment to the registration statement to
include any financial statements required by Reg. ss. 210.3-19 of Regulation S-X
at the start of any delayed offering or throughout a continuous offering.
(b) The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or controlling persons of
the registrant pursuant to the foregoing provisions, or
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<PAGE>
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in said Act and will
be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filings on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Andover, England, on the 23rd day of December, 1999.
SHIRE PHARMACEUTICALS GROUP PLC
By: /s/ Rolf Stahel
------------------------------------
By: Rolf Stahel
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Angus Russell and Neil Harris, and
each of them acting individually, as his attorney-in-fact, each with full power
of substitution, for him in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective amendments),
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorney to any and
all amendments to said Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Capacity Date
<S> <C> <C>
/s/ Rolf Stahel Chief Executive Officer (Principal executive December 23, 1999
- ------------------------------------ officer)
Rolf Stahel
/s/ Dr. James Henry Cavanaugh Non-executive Chairman December 23, 1999
- ------------------------------------
Dr. James Henry Cavanaugh
/s/ Angus Russell Group Finance Director (Principal financial December 23, 1999
- ------------------------------------ officer and principal accounting officer
Angus Russell
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<PAGE>
Name Capacity Date
/s/ Dr. Wilson Totten Director December 23, 1999
- ------------------------------------
Dr. Wilson Totten
/s/ Dr. Barry John Price Director December 23, 1999
- ------------------------------------
Dr. Barry John Price
/s/ Dr. Bernard Canavan Director December 23, 1999
- ------------------------------------
Dr. Bernard Canavan
/s/ Dr. Zola Horovitz Director December 23, 1999
- ------------------------------------
Dr. Zola Horovitz
/s/ Ronald Nordmann Director December 23, 1999
- ------------------------------------
Ronald Nordmann
/s/ Joseph Smith Director December 23, 1999
- ------------------------------------
Joseph Smith
/s/ John T. Spitznagel Director December 23, 1999
- ------------------------------------
John T. Spitznagel
/s/ Dr. Robert Vukovich Director December 23, 1999
- ------------------------------------
Dr. Robert Vukovich
/s/ William Alfred Nuerge Authorized Representative in the United December 23, 1999
- ------------------------------------ States
William Alfred Nuerge
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
*4.1 - Roberts Pharmaceutical Corporation 1996 Equity Incentive Plan
*4.2 - Roberts Pharmaceutical Corporation Incentive Stock Option Plan
*5 - Opinion of Slaughter and May as to the legality of the securities
being registered
*23.1 - Consent of Arthur Andersen, Chartered Accountants.
*23.2 - Consent of Slaughter and May (included in Exhibit 5).
*24 - Power of Attorney (is set forth on the signature page of this
Registration Statement)
- ----------------------
* Filed herewith.
EXHIBIT 4.1
ROBERTS PHARMACEUTICAL CORPORATION
1996 EQUITY INCENTIVE PLAN
1. PURPOSE.
The purpose of this Roberts Pharmaceutical Corporation 1996 Equity
Incentive Plan (the "Plan") is to advance the interests of Roberts
Pharmaceutical Corporation (the "Company") and its subsidiaries by
enhancing the ability of the Company to (i) attract and retain employees
and other persons or entities who are in a position to make significant
contributions to the success of the Company and its subsidiaries; (ii)
reward such persons for such contributions; and (iii) encourage such
persons or entities to take into account the long-term interest of the
Company through ownership of shares of the Company's common stock, $.01 par
value per share (the "Common Stock").
The Plan is intended to accomplish these objectives by enabling the Company
to grant awards ("Awards") in the form of incentive stock options ("ISOs"),
nonqualified stock options ("Nonqualified Options") (ISOs and Nonqualified
Options shall be collectively referred to herein as "Options"), stock
appreciation rights ("SARs"), restricted stock ("Restricted Stock"),
deferred stock ("Deferred Stock"), or other stock based awards ("Other
Stock Based Awards"), all as more fully described below.
2. ADMINISTRATION.
The Plan will be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company (the "Board"). The
Committee may be constituted to permit the Plan to comply with the
"disinterested administration" requirement of Rule 16b-3(c)(2)(i)
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any successor rules, and to comply with the "outside
director" requirement of Section 162(m)(4)(c)(i) of the Internal Revenue
Code of 1986, as amended (the "Code"), and the regulations promulgated
thereunder, or any successor rules. The Committee will determine the
recipients of Awards, the times at which Awards will be made, the size and
type or types of Awards to be made to each recipient, and will set forth in
each such Award the terms, conditions and limitations applicable to the
Award granted. Awards may be made singly, in
<PAGE>
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combination or in tandem. The Committee will have full and exclusive power
to interpret the Plan, to adopt rules, regulations and guidelines relating
to the Plan, to grant waivers of Plan restrictions and to make all of the
determinations necessary for its administration. Such determinations and
actions of the Committee, and all other determinations and actions of the
Committee made or taken under authority granted by any provision of the
Plan, will be conclusive and binding on all parties.
3. EFFECTIVE DATE AND TERM OF PLAN.
The Plan will become effective on May 22, 1996. Awards under the Plan may
be made prior to that date, subject to the shareholders' approval of the
Plan.
The Plan will terminate on May 21, 2006, subject to earlier termination of
the Plan by the Board pursuant to Section 18 herein. No Award may be
granted under the Plan after the termination date of the Plan, but Awards
previously granted may extend beyond that date pursuant to the terms of
such Awards.
4. SHARES SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 15 herein, the aggregate
number of shares of Common Stock reserved for issuance pursuant to Awards
granted under the Plan shall be 1,500,000. The maximum number of shares of
Common Stock which may be issued to the Chief Executive Officer ("CEO") of
the Company pursuant to all Awards granted the CEO under the Plan shall not
exceed thirty-five percent (35%) of the number of shares of the Company's
Common Stock reserved for issuance hereunder. The maximum number of shares
of the Company's Common Stock awarded to any other "Participant" (as
defined in Section 5 below) pursuant to all Awards granted to such
Participant under the Plan shall not exceed twenty percent (20%) of the
number of shares of the Company's Common Stock reserved for issuance
hereunder.
The shares of Common Stock delivered under the Plan may be either
authorized but unissued shares of Common Stock or shares of the Company's
Common Stock held by the Company as treasury shares, including shares of
Common Stock acquired by the Company in open market and private
transactions. No fractional shares of Common Stock will be delivered
pursuant to Awards granted under the Plan and the
<PAGE>
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Committee shall determine the manner in which fractional share value will
be treated.
If any Award requiring exercise by a Participant for delivery of shares of
Common Stock is cancelled or terminates without having been exercised in
full, or if any Award payable in shares of Common Stock or cash is
satisfied in cash rather than Common Stock, the number of shares of Common
Stock as to which such Award was not exercised or for which cash was
substituted will be available for future Awards of Common Stock; provided,
however, that Common Stock subject to an Option cancelled upon the exercise
of an SAR shall not again be available for Awards under the Plan unless,
and to the extent that, the SAR is settled in cash. Shares of Restricted
Stock and Deferred Stock forfeited to the Company in accordance with the
Plan and the terms of the particular Award shall be available again for
Awards under the Plan unless the Committee determines otherwise.
5. ELIGIBILITY AND PARTICIPATION.
Those eligible to receive Awards under the Plan (each, a "Participant" and
collectively, the "Participants") will be persons in the employ of the
Company or any of its subsidiaries designated by the Committee
("Employees") and other persons or entities who, in the opinion of the
Committee, are in a position to make a significant contribution to the
success of the Company or its subsidiaries, including, without limitation,
consultants and agents of the Company or any subsidiary; provided, that
such consultants and agents have been actively engaged in the conduct of
the business of the Company or any subsidiary. A "subsidiary" for purposes
of the Plan will be a present or future corporation of which the Company
owns or controls, or will own or control, directly or indirectly, more than
50% of the total combined voting power of all classes of stock or other
equity interests.
6. OPTIONS.
(a) Nature of Options. An Option is an Award entitling the Participant to
purchase a specified number of shares of Common Stock at a specified
exercise price. Both ISOs, as defined in Section 422 of the Code, and
Nonqualified Options may be granted under the Plan; provided, however,
that ISOs may be awarded only to Employees.
<PAGE>
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(b) Exercise Price. The exercise price of each Option shall be equal to
the "Fair Market Value" (as defined below) of the Common Stock on the
date the Award is granted to the Participant; provided, however, that
(i) in the Committee's discretion, the exercise price of a
Nonqualified Option may be less than the Fair Market Value of the
Common Stock on the date of grant; (ii) with respect to a Participant
who owns more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company, the option price of an
ISO granted to such Participant shall not be less than one hundred and
ten percent (110%) of the Fair Market Value of the Common Stock on the
date the Award is granted; and (iii) with respect to any Option
repriced by the Committee, the exercise price shall be equal to the
Fair Market Value of the Common Stock on the date such Option is
repriced unless otherwise determined by the Committee. For purposes of
this Plan, Fair Market Value shall mean the arithmetic average of the
highest and lowest sale prices of the Common Stock as reported on the
Automated Quotation System of the National Association of Securities
Dealers, Inc. National Market System ("NASDAQ National Market
System"), on a particular date, or if there is no sale on such date,
then the average of such high and low sale prices on the last previous
date on which a sale of Common Stock is reported on the NASDAQ
National Market System.
(c) Duration of Options. The term of each Option granted to a Participant
pursuant to an Award shall be determined by the Committee; provided,
however, that in no case shall an Option be exercisable more than ten
(10) years (five (5) years in the case of an ISO granted to a
ten-percent shareholder as defined in (b) above) from the date of the
Award.
(d) Exercise of Options and Conditions. Except as otherwise provided in
Sections 16 and 17 herein, and except as otherwise provided below with
respect to ISOs, Options granted pursuant to an Award will become
exercisable at such time or times, and on and subject to such
conditions, as the Committee may specify at the time of the Award. The
Options may be subject to such restrictions, conditions and forfeiture
provisions as the Committee may determine, including, but not limited
to, restrictions on trans-
<PAGE>
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fer, continuous service with the Company or any of its subsidiaries,
achievement of business objectives, and individual, division and
Company performance. To the extent exercisable, an Option may be
exercised either in whole at any time or in part from time to time.
With respect to an ISO granted to a Participant, the Fair Market Value
of the shares of Common Stock on the date of grant which are
exercisable for the first time by a Participant during any calendar
year shall not exceed $100,000.
(e) Payment for and Delivery of Stock. Full payment for shares of Common
Stock purchased will be made at the time of the exercise of the
Option, in whole or in part. Payment of the purchase price will be
made in cash or in such other form as the Committee may permit,
including, without limitation, delivery of shares of Common Stock.
7. STOCK APPRECIATION RIGHTS.
(a) Nature of Stock Appreciation Rights. A SAR is an Award entitling the
recipient to receive payment, in cash and/or shares of Common Stock,
determined in whole or in part by reference to appreciation in the
value of a share of Common Stock. A SAR entitles the recipient to
receive in cash and/or shares of Common Stock, with respect to each
SAR exercised, the excess of the Fair Market Value of a share of
Common Stock on the date of exercise over the Fair Market Value of a
share of Common Stock on the date the SAR was granted.
(b) Grant of SARs. SARs may be subject to Awards in tandem with, or
independently of, Options granted under the Plan. A SAR granted in
tandem with an Option which is not an ISO may be granted either at or
after the time the Option is granted. A SAR granted in tandem with an
ISO may be granted only at the time the ISO is granted and may expire
no later than the expiration of the underlying ISO.
(c) Exercise of SARs. A SAR not granted in tandem with an Option will
become exercisable at such time or times, and on such conditions, as
the Committee may specify. A SAR granted in tandem with an Option will
be exercisable only at such times, and to the extent, that the related
Option is exercisable. A SAR
<PAGE>
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granted in tandem with an ISO may be exercised only when the market
price of the shares of Common Stock subject to the ISO exceeds the
exercise price of the ISO, and the SAR may be for no more than one
hundred percent (100%) of the difference between the exercise price of
the underlying ISO and the Fair Market Value of the Common Stock
subject to the underlying ISO at the time the SAR is exercised. At the
option of the Committee, upon exercise, a SAR may be settled in cash,
Common Stock or a combination of both.
8. RESTRICTED STOCK.
A Restricted Stock Award entitles the recipient to acquire shares of Common
Stock, subject to certain restrictions or conditions, for no cash
consideration, if permitted by applicable law, or for such other
consideration as may be determined by the Committee. The Award may be
subject to such restrictions, conditions and forfeiture provisions as the
Committee may determine, including, but not limited to, restrictions on
transfer, continuous service with the Company or any of its subsidiaries,
achievement of business objectives, and individual, division and Company
performance. Subject to such restrictions, conditions and forfeiture
provisions as may be established by the Committee, any Participant
receiving an Award of Restricted Stock will have all the rights of a
shareholder of the Company with respect to the shares of Restricted Stock,
including the right to vote the shares and the right to receive any
dividends thereon.
9. DEFERRED STOCK.
A Deferred Stock Award entitles the recipient to receive shares of Common
Stock to be delivered in the future. Delivery of the shares of Common Stock
will take place at such time or times, and on such conditions, as the
Committee may specify. At the time any Deferred Stock Award is granted, the
Committee may provide that the Participant will receive an instrument
evidencing the Participant's right to future delivery of Deferred Stock.
10. OTHER STOCK BASED AWARDS.
The Committee shall have the right to grant Other Stock Based Awards under
the Plan to Employees which may include, without limitation, the grant of
shares of Common Stock as bonus compensation and the issuance of shares of
Common
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Stock in lieu of an Employee's cash compensation.
11. AWARD AGREEMENTS.
The grant of any Award under the Plan may be evidenced by an agreement
which shall describe the specific Award granted and the terms and
conditions of the Award. Any Award shall be subject to the terms and
conditions of any such agreement required by the Committee.
12. TRANSFERS.
No Award (other than an outright Award in the form of Common Stock without
any restrictions) may be assigned, pledged or transferred other than by
will or by the laws of descent and distribution and, during a Participant's
lifetime, will be exercisable only by the Participant or, in the event of a
Participant's incapacity, by the Participant's guardian or legal
representative.
13. RIGHTS OF A SHAREHOLDER.
Except as specifically provided by the Plan, the receipt of an Award will
not give a Participant rights as a shareholder of the Company. The
Participant will obtain such rights, subject to any limitations imposed by
the Plan, or the instrument evidencing the Award, upon actual receipt of
shares of Common Stock.
14. CONDITIONS ON DELIVERY OF STOCK.
The Company will not be obligated to deliver any shares of Common Stock
pursuant to the Plan or to remove any restrictions or legends from shares
of Common Stock previously delivered under the Plan until (a) in the
opinion of the Company's counsel, all applicable federal and state laws and
regulations have been complied with, (b) until the shares of Common Stock
to be delivered have been listed or authorized to be listed on the NASDAQ
National Market System, and (c) until all other legal matters in connection
with the issuance and delivery of such shares of Common Stock have been
approved by the Company's counsel. If the sale of shares of Common Stock
has not been registered under the Securities Act of 1933, as amended (the
"Act"), and qualified under the appropriate "blue sky" laws, the Company
may require, as a condition to exercise of the Award, such representations
and agreements
<PAGE>
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as counsel for the Company may consider appropriate to avoid violation of
such Act and laws and may require that the certificates evidencing such
shares of Common Stock bear an appropriate legend restricting transfer.
If an Award is exercised by a Participant's legal representative, the
Company will be under no obligation to deliver shares of Common Stock
pursuant to such exercise until the Company is satisfied as to the
authority of such representative.
15. TAX WITHHOLDING.
The Company will have the right to deduct from any cash payment under the
Plan taxes that are required to be withheld and to condition the obligation
to deliver or vest shares of Common Stock under this Plan upon the
Participant's paying the Company such amount as the Company may request to
satisfy any liability for applicable withholding taxes. The Committee may
in its discretion permit Participants to satisfy all or part of their
withholding liability either by delivery of shares of Common Stock held by
the Participant or by withholding shares of Common Stock to be delivered to
a Participant upon the grant or exercise of an Award.
16. ADJUSTMENT OF AWARD.
(a) In the event that a dividend shall be declared upon the Common Stock
payable in shares of Common Stock, the number of shares of the Common
Stock then subject to any Award and the number of shares of the Common
Stock which may be issued under the Plan but not yet covered by an
Award shall be adjusted by adding to each share the number of shares
which would be distributable thereon if such shares had been
outstanding on the date fixed for determining the shareholders
entitled to receive such stock dividend. In the event that the
outstanding shares of the Common Stock shall be changed into or
exchanged for a different number or kind of shares of Common Stock or
other securities of the Company or of another corporation or for cash,
whether through reorganization, recapitalization, stock split,
combination of shares, sale of assets, merger or consolidation in
which the Company is the surviving corporation, then, there shall be
substituted for each share of the Common Stock then subject to any
Award, the number and kind of shares
<PAGE>
-9-
of stock or other securities or the amount of cash into which each
outstanding share of the Common Stock shall be so changed or for which
each such share shall be exchanged.
(b) In the event of a proposal, which is approved by the Board, of any
merger or consolidation involving the Company where the Company is not
the surviving entity, any sale of substantially all of the Company's
assets or any other transaction or series of related transactions as a
result of which a single person or several persons acting in concert
own a majority of the Company's then outstanding Common Stock (such
merger, consolidation, sale of assets, or other transaction being
hereinafter referred to as a "Transaction"), all outstanding Options
and SARs shall become exercisable immediately before or
contemporaneously with the consummation of such Transaction and each
outstanding share of Restricted Stock and each outstanding Deferred
Stock Award shall immediately become free of all restrictions and
conditions upon consummation of such Transaction. Upon consummation of
the Transaction, all outstanding Options and SARs shall terminate and
cease to be exercisable.
In lieu of the foregoing, if the Company will not be the surviving
corporation or entity, the Committee may arrange to have such
acquiring or surviving corporation or entity, or an "Affiliate" (as
defined below) thereof, grant replacement Awards to Participants
holding outstanding Awards.
The term "Affiliate," with respect to any Person, shall mean any other
Person who is, or would be deemed to be an "affiliate" or an
"associate" of such Person within the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act. The term "Person" shall mean a corporation,
association, partnership, joint venture, trust, organization,
business, individual or government or any governmental agency or
political subdivision thereof.
(c) In the event of the dissolution or liquidation of the Company (except
a dissolution or liquidation relating to a sale of assets or other
reorganization of the Company referred to in the preceding sections),
the
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outstanding Options and SARs shall terminate as of a date fixed by the
Committee; provided, however, that not less than thirty (30) days
written notice of the date so fixed shall be given to each Participant
who shall have the right during such period to exercise the
Participant's Options or SARs as to all or any part of the shares of
Common Stock covered thereby. Further, in the event of the dissolution
or liquidation of the Company, each outstanding share of Restricted
Stock and each outstanding Deferred Stock Award shall immediately
become free of all restrictions and conditions.
17. TERMINATION OF SERVICE.
Upon a Participant's termination of service with the Company or a
subsidiary (if an employee only of a subsidiary), any outstanding Award
shall be subject to the terms and conditions set forth below, unless
otherwise determined by the Committee:
(a) In the event a Participant leaves the employ or service of the Company
or, if the Participant is an employee only of a subsidiary of the
Company, a subsidiary prior to the Participant's 65th birthday,
whether voluntarily or otherwise but other than by reason of the
Participant's death or "disability" (as such term is defined in
Section 22(e)(3) of the Code), each Option and SAR granted to the
Participant shall terminate upon the earlier to occur of (i) the
expiration of the period three (3) months after the date of such
termination and (ii) the date specified in the Option or SAR;
provided, that, prior to the termination of such Option or SAR, the
Participant shall be able to exercise any part of the Option or SAR
which is exercisable as of the date of termination. Further, each
outstanding share of Restricted Stock and each outstanding Deferred
Stock Award which remains subject to any restrictions or conditions of
the Award shall be forfeited to the Company upon such date of
termination.
(b) In the event a Participant's employment with or service to the Company
or its subsidiaries terminates by reason of the Participant's death or
"disability" (as such term is defined in Section 22(e)(3) of the
Code), each Option and SAR granted to the Participant shall become
immediately exercisable in full and
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shall terminate upon the earlier to occur of (i) the expiration of the
period six (6) months after the date of such termination and (ii) the
date specified in the Option or SAR. Further, each outstanding share
of Restricted Stock and each outstanding Deferred Stock Award shall
immediately become free of all restrictions and conditions upon the
date of such termination.
(c) In the event a Participant voluntarily leaves the employ or service of
the Company or, if the Participant is an employee only of a subsidiary
of the Company, a subsidiary after the Participant's 65th birthday,
each Option and SAR granted to the Participant shall become
immediately exercisable in full and shall terminate upon the earlier
to occur of (i) the expiration of three (3) months after the date of
such termination and (ii) the date specified in the Option or SAR.
Further, each outstanding share of Restricted Stock and each
outstanding Deferred Stock Award shall immediately become free of all
restrictions and conditions upon the date of such termination unless
otherwise provided in the Award. If the Participant involuntarily
leaves the employ or service of the Company or a subsidiary after the
Participant's 65th birthday, each Option and SAR granted to the
Participant shall terminate upon the earlier to occur of (i) the
expiration of three (3) months after the date of such termination and
(ii) the date specified in the Option or SAR; provided, that, prior to
the termination of such Option or SAR, the Participant shall be able
to exercise any part of the Option or SAR which is exercisable as of
the date of termination. Further, each outstanding share of Restricted
Stock and each outstanding Deferred Stock Award which remains subject
to any restrictions or conditions of the Award shall be forfeited to
the Company upon such date of termination.
18. AMENDMENTS AND TERMINATION.
The Committee will have the authority to make such amendments to any terms
and conditions applicable to outstanding Awards as are consistent with this
Plan provided that, except for adjustments under Section 16 hereof, no such
action will modify such Award in a manner adverse to the Participant
without the Participant's consent except as
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such modification is provided for or contemplated in the terms of the
Award.
The Board may amend, suspend or terminate the Plan, except (i) no such
action may be taken, without shareholder approval, which would effectuate
any change for which shareholder approval is required pursuant to Section
16 of the Exchange Act or Section 162(m) of the Code, and (ii) no action
may, without the consent of a Participant, alter or impair any Award
previously granted to the Participant under the Plan.
19. SUCCESSORS AND ASSIGNS.
The provisions of this Plan shall be binding upon all successors and
assigns of any such Participant including, without limitation, the estate
of any such Participant and the executors, administrators, or trustees of
such estate, and any receiver, trustee in bankruptcy or representative of
the creditors of any such Participant.
20. MISCELLANEOUS.
(a) This Plan shall be governed by and construed in accordance with the
laws of the State of New Jersey.
(b) Any and all funds received by the Company under the Plan may be used
for any corporate purpose.
(c) Nothing contained in the Plan or any Award granted under the Plan
shall confer upon a Participant any right to be continued in the
employment of the Company or any subsidiary, or interfere in any way
with the right of the Company, or its subsidiaries, to terminate the
employment relationship at any time.
EXHIBIT 4.2
ROBERTS PHARMACEUTICAL CORPORATION
Incentive Stock Option Plan
Section 1 - Purpose
The Roberts Pharmaceutical Corporation Incentive Stock Option Plan (the
"Plan") is intended to provide a method whereby key employees of Roberts
Pharmaceutical Corporation (the "Company") who are contributing materially to
the Company's progress, and who are currently making and are expected to
continue making substantial contributions to the successful growth of the
Company, may be offered incentives in addition to those currently available and
may be stimulated by personal involvement in the fortunes of the Company to
continue in the service of the Company, thereby advancing the interest of the
Company and its shareholders. Accordingly, the Company may, from time to time,
grant to such key employees, as may be selected in the manner hereinafter
provided, options to purchase shares of Common Stock, $.01 par value, of the
Company (the "Common Stock") on the terms and conditions hereinafter
established. The Plan is intended to be an "incentive stock option plan" and to
comply with Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
The term "Company" as used in this Plan means Roberts Pharmaceutical
Corporation and its subsidiaries (corporations in respect of which Roberts
Pharmaceutical Corporation, owns, directly or indirectly, at least fifty-one
(51%) percent of the total issued and outstanding voting capital stock) as may
be designated from time to time by its Board of Directors.
Section 2 - Administration of the Plan
The Plan shall be administered by the Board of Directors of the Company or
a Stock Option Committee (the "Committee" or the Stock Option Committee") whose
members will be appointed by the Board of Directors of the Company. The
Committee shall consist of not fewer than two members of the Company's Board of
Directors, who may also be employees of the Company. The Board of Directors may
from time to time remove members from or add members to the Committee. Vacancies
an the Committee, howsoever caused, shall be filled by the Board of Directors.
The Committee shall select one of its members as Chairman and shall hold
meetings at such times and places as it may determine. Acts by a majority of the
Committee shall be the valid acts of the Committee.
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The interpretation and construction by the Committee of any provisions of
the Plan or of any agreement or other matter relating to the Plan shall be final
unless otherwise determined by the Board of Directors. The Committee may, from
time to time, adopt such rules and regulations for carrying out the Plan as it
may deem appropriate. Nothing herein contained shall be deemed to authorize the
Committee to administer the provisions of the Plan in a manner inconsistent with
the provisions of Section 422 of the Code or the regulations promulgated
thereunder. No member of the Board of Directors shall be liable for any action
or determination made in good faith with respect to the Plan or any agreement or
other matter relating to the Plan.
Section 3 - Shares Subject to the Plan
The shares to be issued under the Plan shall be made available either from
authorized but unissued shares of Common Stock of the Company or from shares of
Common Stock reacquired by the Company, including shares purchased on the open
market. Shares issued under the Plan shall be subject to the terms, conditions
and provisions specified in the Plan and to such other terms, conditions and
provisions as the Board of Directors or the Committee may provide.
The aggregate number of shares which may be issued under the Plan shall not
exceed 1,139,275 shares of the Company's Common Stock. If prior to August 16,
1997, options granted expire, terminate or are surrendered without having been
exercised in full or shares issued under the Plan are reacquired by the Company,
such reacquired shares and shares subject to options which have expired,
terminated or are surrendered shall again become available for issuance under
the Plan.
In the event of any change in the Common Stock of the Company by reason of
stock dividends, split-ups, corporate separations, recapitalizations, mergers,
consolidations, combinations, exchanges of shares and the like, the aggregate
number and class of shares available under this Plan and the number, class and
purchase price of shares under option but not yet issued under this Plan shall
be adjusted appropriately. Nothing herein contained shall be construed to
require an adjustment in the aggregate number or class of shares available under
the Plan or in the number, class or purchase price of shares under option but
not yet issued if a merger, consolidation, combination or similar transaction
involves the issuance of securities of the Company and the number or class of
shares held by holders of Common Stock of the Company prior to the consummation
of
<PAGE>
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the merger, consolidation, combination or similar transaction is not affected
by any such transaction. No adjustment shall be made pursuant to this section of
the Plan which would result in a fractional share being subject to an option,
and any option in respect of a fractional share resulting from such adjustment
shall be adjusted down to the nearest full share. Further, no adjustment shall
be made pursuant to this section of the Plan which would result in a
modification of the options granted hereunder in a manner which would disqualify
such options as "incentive stock options" or disqualify this Plan as an
"incentive stock option plan" under the provisions of Section 422 of the Code
and the regulations thereunder.
* * * * * * * * * * * * * *
In October 1989, the Company effected a recapitalization pursuant to which
each share of the Company's Common Stock reserved for issuance under the Plan
was exchanged for .5971 shares of Common Stock. Consequently, the number of
shares of the Company's Common Stock reserved for issuance under the Plan was
reduced from 250,000 to 149,275 shares.
On October 20, 1989, the Company's Board of Directors approved an amendment
of the Plan which increased the number of shares of Common Stock of the Company
reserved for issuance under the Plan from 149,275 to 389,275. On October 24,
1989, the Company's shareholders approved the amendment previously approved by
the Board of Directors. As of October 31, 1989, options to purchase 149,275
shares of Common Stock were issued under the Plan. Consequently, 240,000 shares
of Common Stock remained available for the grant of options under the Plan as of
October 31, 1982.
On March 12, 1992 the Company's Board of Directors approved an amendment to
the Plan to increase the number of shares of Common Stock reserved for issuance
under the Plan from 389,275 to 1,139,275, subject to shareholder approval which
was granted on June 30, 1992. As of June 30, 1992, options to purchase 379,185
shares of Common Stock were granted under the Plan. Accordingly, 760,090 shares
of Common Stock remained available for the grant of options under the Plan an of
June 30, 1992.
Section 4 - Eligibility
Options my be granted under the Plan to employees of the Company who have
not attained the age of 65 on the date the options are granted to them. The term
"employees" shall in-
<PAGE>
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clude officers as well as other employees of the Company. A director of the
Company who in not also an employee of the Company shall not be eligible to
receive any option under this Plan. An employee participating in the Plan is
sometimes referred to herein as "optionee."
No option may be granted under this Plan to any employee who, immediately
after such option is granted, owns, within the meaning of Section 422(b)(6) of
the Code, stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company unless the option price is at least 110% of
the fair market value of the shares subject to the option on the date that the
option is granted and the option may not be exercised more than five (5) years
after the date of grant. Further, the aggregate fair market value (determined as
of the date the option is granted) of the shares for which options are
exercisable for the first time under this Plan and incentive stock options, as
defined under Section 422 of the Code, granted pursuant to all other stock
option plans of the Company or any parent or subsidiary of the Company by any
employee during any calendar year shall not exceed $100,000. To the extent an
employee elects during any calendar year not to exercise to the fullest
permissible extent options which are exercisable by him for the first time, said
unexercised options may be exercised in subsequent calendar years. If, after a
good faith attempt to comply with the limitation set forth in the preceding
sentences, the aggregate fair market value (determined as of the date the option
is granted) of the shares for which any employee is granted options in any
calendar year under the Plan and incentive stock options, as defined under
Section 422 of the Code, granted pursuant to all other stock option plans of the
Company or any parent or subsidiary of the Company exceeds $100,000 plus any
unused limit carryover allowed for such year then, notwithstanding the failure
to comply with the limitation set forth in the preceding sentences, the options
covering shares having a fair market value in excess of such limitation shall be
valid unless the grant of such options shall disqualify this Plan as an
"incentive stock option plan" under the provisions of Section 422 of the Code
and the regulations thereunder, and the Federal income tax consequences relating
to such options shall be as prescribed by the Code, any regulations or rulings
promulgated thereunder or the Internal Revenue Service.
Subject to the provisions of the Plan, the Committee shall have exclusive
authority to determine the date or dates upon which options shall be granted,
the employees who are to participate in the Plan, the consideration to be paid
for
<PAGE>
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shares subject to options, the time or times when an option shall be
exercisable, the number of shares to be covered by each option, the terms and
provisions of option agreements executed and delivered under the Plan and the
form of legend, if any, which shall be affixed to the stock certificate(s)
evidencing shares issued under the Plan.
Section 5 - Granting of Options; Term of Options
Upon selection of an employee to participate in the Plan, the Committee
shall notify said employee in writing of (i) his selection and (ii) the options
being granted to him and the consideration to be paid for the shares subject to
option upon the exercise thereof. Such notice shall be accompanied by an
agreement between the Company and the employee containing the terms, conditions
and provisions applicable to the exercise of the options granted. The Committee
may elect to incorporate the foregoing notice provisions into the option
agreement. Subject to the provisions of the Plan, options may be granted to the
same employee on more than one occasion.
The Committee shall determine the term of each option granted hereunder,
but the term of any such option shall not exceed ten (10) years (or five (5)
years in the case of an option granted to a 10% shareholder referred to in
Section 4 hereof) from the date upon which the option is granted, and shall be
subject to earlier termination as herein provided. An option shall be deemed to
be granted to an employee on the date on which the Board of Directors or the
Committee selects the optionee and determines the terms and conditions of the
grant, including option price, to him.
Section 6 - Option Price
The consideration to be paid for each share of Common Stock subject to an
option granted hereunder (the "option price") shall be determined by the
Committee, but the option price shall be not less than 100% (or 110% in the case
of an option granted to a 10% shareholder referred to in Section 4 hereof) of
the fair market value of the Common Stock on the date that the option is
granted. The term "fair market value" as used in this Plan shall mean the
average of the closing bid and asked prices of the Common Stock as furnished by
any recognized dealer in securities selected by the Committee for the purpose;
if the Common Stock is at the time listed on a stock exchange, fair market value
shall mean the last sale price regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices regular way, in
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either case as officially quoted on such stock exchange; and if there is no
market for the shares and the shares are not so listed, then fair market value
shall mean the fair market value as determined by the Committee (whose
determination shall be conclusive) in accordance with the applicable provisions
of the Code and the regulations thereunder.
Section 7 - Exercise of Options, Issuance of Shares
The total number of shares subject to each option may be allocated so that
such shares are to be acquired in installments, as fixed by the Committee, over
a period of not more than ten (10) years (or five (5) years in the case of an
option granted to a 10% shareholder referred to in Section 4 hereof) from the
date of the grant of the option. In the event that the Committee determines that
an option is to be exercisable in installments, the optionee must continue in
the employ of the Company during the whole of any period for which an
installment of shares shall have been allocated by the terms of his option
before such installment of the option becomes exercisable. To the extent that
any installment of any option becomes exercisable it may thereafter be exercised
either in whole or in part at any time prior to the expiration of the option or
prior to its termination as herein provided.
An employee electing to exercise an option under the Plan shall give
written notice to the Chairman of the Committee of such election and of the
number of shares the employee has elected to acquire. No option granted
hereunder may be exercised for less than a whole share of Common Stock. An
employee who has elected to exercise an option shall deliver to the Chairman of
the Committee at the time of exercise the full consideration to be paid for the
shares which are subject to the option(s) being exercised in cash at by
certified or cashier's check or by personal check if acceptable to the
Committee.
Until the employee has been issued a certificate or certificates for the
shares acquired upon the exercise of options granted hereunder, the employee
shall possess no shareholder's rights with respect to any such shares.
In the event that any employee disposes of shares of Common Stock he
acquired pursuant to an option granted under the Plan within two (2) years after
the granting of the option or within one (1) year after exercise of the option
issued to such employee, the Company shall be required to withhold from the
employee's salary or wages additional income taxes in respect of that amount
which is considered compensation includ-
<PAGE>
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able in the employee's gross income by reason of the disposition. The amount of
compensation includable in the employees gross income shall be determined by
multiplying the number of shares of Common Stock disposed of by the difference
between the exercise price of such shares and the amount realized upon the
disposition.
Section 8 - Expiration and Termination of Options
Each option and all rights and obligations thereunder shall expire on a
date to be determined by the Committee, such date, however, in no event to be
later than ten (10) years (or five (5) years in the case of an option granted to
a 10% shareholder referred to in Section 4 hereof) from the date on which the
option is granted. Subject to the provisions contained in the following
paragraphs of this Section 8 of the Plan, no optionee may exercise an option
granted hereunder unless he in an employee of the Company.
An optionee who is absent from work with the Company because of his
disability, or who is on leave of absence for the purpose of serving the United
States government in either a military or civilian capacity, or for such other
purpose or reason as the Committee may specifically approve, shall not during
the period of any such absence be deemed, by virtue of his absence alone, to
have terminated his employment with the Company, except as the Committee may
otherwise expressly provide and provided that the Code and the regulations
thereunder do not provide otherwise.
If an optionee's employment with the Company is terminated for any reason
except death, any option granted to him hereunder may be exercised to the extent
that the optionee could have exercised the option on the date of termination of
employment at any time within ninety (90) days after the date of such
termination, but in no event after the expiration of the term of the option.
Retirement of an optionee from employment with the Company shall be deemed to be
termination of employment subject to the provisions of this paragraph of this
Section 8 of the Plan.
If an optionee dies while in the employ of the Company prior to the
expiration of an option granted to him hereunder, his executor, personal
representative or beneficiary, as the case may be, shall be entitled to exercise
the option to the extent that the optionee could have exercised the option on
the date of his death, at any time within six (6) months from
<PAGE>
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the date of his death, but in no event after the expiration of the term of the
option. Section 9 - Rights Not Transferable
An employee's rights or options under this Plan are exercisable, during his
lifetime, only by him and such rights or options granted hereunder may not be
sold, pledged, assigned or transferred in any manner other than by will or the
laws of descent and distribution. Any attempt to sell, pledge, assign or
transfer such rights options shall be void, and shall automatically cause all
options granted hereunder and held by the employee to be terminated.
Section 10 - Merger, Consolidation, Reorganization, Liquidation and Dissolution
In the event that the Company shall be the surviving corporation in any
merger, consolidation or other reorganization of the Company, outstanding
options granted under the Plan shall apply to the securities to which a holder
of the number of shares of Common Stock of the Company subject to the options
would have been entitled by reason of the merger, consolidation or other
reorganization and any other changes in the number or character of the shares to
which the option relates as may be made by the Committee or the Board of
Directors.
In the event of a merger, consolidation, sale of all or substantially all
of the Company's assets or other reorganization in which the Company is not the
surviving or acquiring corporation, or in which the Company is or becomes a
wholly owned subsidiary of another corporation after a reorganization, the Board
of Directors of the Company shall, in good faith, but in its sole and absolute
discretion, seek to arrange any such merger, consolidation, sale of assets or
other reorganization to specifically provide the corporation surviving the
merger, consolidation or other reorganization or acquiring the assets to either
(i) adopt this Plan so that the securities of such corporation are offered in
lieu of Common Stock of the Company; or (ii) to the extent that options granted
hereunder have not been exercised, settle the participating employees option
rights by payment of cash or other consideration for such rights on a basis
approved by the Board of Directors. In the event that the corporation surviving
the merger, consolidation or other reorganization or acquiring the assets is to
adopt this Plan, such arrangements shall include the adjustment of outstanding
options to provide that the securities of the corporation surviving the merger,
consolidation or other reorgani-
<PAGE>
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zation or acquiring the assets shall become subject to such options in lieu of
Common Stock of the Company on the basis approved by the Board of Directors.
If provisions for the change, conversion or exchange of the shares subject
to outstanding and unexercised options for securities of another corporation or
the settlement of option rights cannot be arranged in a merger, consolidation,
sale of assets or other reorganization of the Company as described in the
preceding paragraph, then, in that event, outstanding options granted under the
Plan shall terminate as of a date fixed by the Committee; provided, however,
that not less than thirty (30) days written notice of the date so fixed shall be
given to each optionee and each such optionee shall have the right during such
period to exercise his option as to all or any part of the shares covered
thereby, including the shares as to which such option would not otherwise be
exercisable by reason of an insufficient lapse of time.
In the event of the dissolution or liquidation of the Company (except a
dissolution or liquidation relating to a sale of assets or other reorganization
of the Company referred to in the preceding paragraphs) then, in either event,
outstanding options granted under the Plan shall terminate as of a date fixed by
the Committee; provided, however, that not less than thirty (30) days written
notice of the date so fixed shall be given to each optionee and each such
optionee shall have the right during such period to exercise his option as to
all or any part of the shares covered thereby, including shares as to which such
option would not otherwise be exercisable by reason of an insufficient lapse of
time.
Section 11 - Amendments to the Plan
The Board of Directors of the Company may at any time or from time to time
modify the Plan in such respects as the Board of Directors may deem advisable in
order that options granted thereunder shall conform to any change in the law, or
in any other respect which the Board may deem to be in the best interest of the
Company; provided, that no such modification without the approval of the
shareholders of the Company shall
(a) Increase the maximum number of shares which may be issued under
the Plan in the aggregate (except as permitted by the last two paragraphs
of Section 3); or
(b) Materially increase the benefits accruing to employees
participating under the Plan; or
<PAGE>
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(c) Materially modify the requirements as to eligibility for
participation in the Plan; or
(d) Change the provisions of Section 6 relating to the establishment
of the option price other than to change the manner of determining the fair
market value of the Company's Common Stock to conform with any then
applicable provisions of the Code or regulations thereunder; or
(e) Extend the period during which options may be granted under the
Plan.
Section 12 - Termination of the Plan
The Board of Directors of the Company may at any time suspend or terminate
the Plan. Unless the Plan shall theretofore have been terminated by the Board of
Directors of the Company, the Plan shall terminate ten (10) years from the date
of its adoption by the Board of Directors; provided, however, that options
granted on or before such date shall remain exercisable, in accordance with
their respective terms, after the termination of the Plan. In no event shall any
option granted be exercisable later than ten (10) years from the date of the
granting of the option nor shall any option be granted during any suspension or
after termination of the Plan.
Section 13 - Compliance with Securities Laws
No options may be granted nor may Common Stock be purchased under this Plan
until the Company has taken all actions then required to comply with the
Securities Act of 1933, as amended, and any applicable state securities laws and
the rules and regulations of any exchange on which the Common Stock may be
listed.
Section 14 - Miscellaneous
(a) This Plan shall not become effective unless and until it has been
approved, in the manner prescribed by law, by the shareholders of the Company.
(b) This Plan shall not be deemed to constitute a contract of employment
between the Company and any employee, nor shall it interfere with the right of
the Company to terminate any employee and treat him without regard to the effect
which such treatment might have upon him under this Plan.
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(c) Any and all funds received by the Company under this Plan may be used
for any corporate purpose.
(d) This Plan and any agreement entered into in connection therewith shall
be construed and its provisions enforced and administered in accordance with the
laws of the State of New Jersey. All disputes which may arise under the Plan or
any agreement entered into in connection therewith which involve judicial
adjudication shall be resolved in a court of competent jurisdiction of the State
of New Jersey or the United States District Court for the District of New
Jersey. Any employee of the Company who participates in the Plan consents and
agrees to submit to the personal jurisdiction of the aforesaid courts, agrees to
notify the Company of any change of his address within sixty (60) days of the
date of such change, and consents to service of any papers, notices or process
necessary or proper for any legal action in any manner permitted by the New
Jersey Court Rules as they exist or are thereafter amended, including, without
limitation, service by registered mail or certified mail, return receipt
requested, or, in the event the employee refuses to accept or claim registered
or certified mail, ordinary mail to his last known address. In the event that a
participating employee fails to notify the Company of a change of address and
service by registered or certified mail as aforesaid is not accepted or claimed,
such failure shall be deemed a refusal to accept or claim service of process by
registered or certified mail. Any employee of the Company who participates in
the Plan acknowledges the sufficiency of service as aforesaid and waives any
right that he may have to challenge the sufficiency of such service or to
challenge in any manner the convenience of the location or the venue of any
legal action brought involving the Plan or any agreement entered into in
connection therewith.
EXHIBIT 5
[Letterhead of Slaughter and May]
Shire Pharmaceuticals Group plc,
East Anton
Andover,
Hants. SP10 5RG
23rd December, 1999
Dear Sirs,
Introduction
1. We have acted as English legal advisors to you (the "Company") in
connection with the Form S-8 Registration Statement dated December 23, 1999
(the "Form S-8") relating to the proposed issue of ordinary shares of
nominal value of five pence each in the capital of the Company (the
"Shares").
2. This letter may be relied upon only by you and may be used only in
connection with the issue of the Shares. Neither its contents nor its
existence may be disclosed to any other person unless we have given our
prior written consent or as set out below.
Scope
3. This opinion is confined to matters of English law. Accordingly, we have
not made any investigation of, and do not express any opinion on, the law
of any jurisdiction other than England and Wales. In particular, we express
no opinion on European Community law as it affects any jurisdiction other
than England.
4. We have examined copies of the documents mentioned herein and such other
documents as we have considered necessary. We have not undertaken any
exercise which is not described in this letter.
Documents examined
5. For the purposes of this opinion we have examined and relied upon the
following documents:
(A) a copy of the Form S-8;
(B) a copy of the Registration Statement on Form F-4 filed with the
Securities and Exchange Commission (the "SEC") by the Company relating
to the proposed issue of the Shares (the "Prospectus-Proxy
Statement");
<PAGE>
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(C) a copy of the agreement and plan of merger entered into by the
Company, Ruby Acquisition Sub Inc and Roberts Pharmaceutical
Corporation as of 26th July, 1999 (the "Merger Agreement");
(D) a copy of the circular published on 23rd November, 1999 to the
Company's shareholders comprising listing particulars prepared in
accordance with the listing rules made under section 142 of the
Financial Services Act 1986 (the "Circular");
(E) copies of the minutes of all relevant meetings of the Board of
Directors of the Company or, in the case of the meeting approving the
Prospectus-Proxy Statement, a substantially final draft thereof (the
"Board Minutes");
(F) copies of the minutes of all relevant General Meetings of the Company
or, in the case of the meeting notice of which is contained in the
Circular, a substantially final draft thereof (the "GM Minutes"); and
(G) such other documents and records as we have considered necessary or
appropriate for the purposes of this opinion.
Assumptions
6. In giving this opinion, we have assumed:
(A) that the statements contained in the Board Minutes, the GM Minutes,
the Merger Agreement and the Circular are complete and accurate as at
the date of this opinion and that the directors of the Company present
at the meetings recorded in the Board Minutes were acting in the
interests and for a proper purpose of the Company;
(B) the authenticity, completeness and conformity to original documents of
all copy documents examined by us;
(C) that all signatures purporting to be on behalf of (or to witness the
execution on behalf of) the Company or any director of the Company are
genuinely those of the persons whose signatures they purport to be;
(D) that, where a document has been examined by us in draft form, it has
been or will be signed and/or given final approval in the form of that
draft;
(E) that words and phrases used in the Prospectus-Proxy Statement and the
Form S-8 have the same meaning and effect as they would if those
documents were governed by English law and there is no provision of
any law (other than English law) which would affect anything in this
opinion letter; and
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(F) that no other event occurs after the date hereof which would affect
the opinions herein stated.
Opinion
7. We are of the opinion that, relying on the assumptions listed in paragraph
5 and subject to the reservations mentioned below, the Company has the
requisite corporate power to issue the Shares and all shareholder
resolutions necessary to authorise such issue have been passed. The Shares
to be issued by the Company will, when so issued, have been validly
authorised, allotted and issued as fully paid and non-assessable. On this
basis, the issue of Shares will be free of any pre-emptive rights and no
personal liability by way of call will attach to the holders of the Shares
as such holders under English law.
Reservations
8. Our opinion is qualified by the following reservations and by any matter of
fact not disclosed to us:
(A) English law, the Articles of Association of the Company and the
Listing Rules of the London Stock Exchange contain restrictions on the
transfer of shares and voting rights in certain limited circumstances
including the following:
(i) transfers of shares may be avoided under the provisions of
insolvency law, or where any criminal or illegal activity is
involved, or where the transferor or transferee does not have the
requisite legal capacity or authority, or where the transferee is
subject to restrictions or constraints;
(ii) the registration of a transfer of shares by a particular
shareholder may be restricted if that shareholder has failed to
disclose his interest in shares in the Company after having been
served with a notice by the Company requesting such disclosure
pursuant to Section 212 of the Companies Act 1985;
(iii) save in the case of depositary schemes or clearance services, no
transfer will be registered unless the appropriate stamp duty has
been paid at the rate of 0.5 per cent. (rounded up if necessary
to the nearest multiple of five pounds sterling ((pound)5)) of
the stated consideration or if the stock transfer form is
otherwise not in order;
(iv) any holder of shares who is a director of the Company is bound by
the Model Code for Dealing in Securities promulgated by the
London Stock Exchange which imposes restrictions on the ability
of directors to transfer shares in the two months prior to the
announce-
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ment of interim and final results and at other times when
directors are in possession of unpublished price sensitive
information;
(v) under the Companies Act 1985, and subject to the Uncertificated
Securities Regulations 1995, the Company can close its register
of members from time to time for periods not exceeding 30 days in
aggregate in any calendar year and during any such period no
transfer of shares may be registered;
(vi) no share may be transferred after the passing of a resolution for
the winding-up of the Company;
(vii) a company or the Court may impose restrictions on the
transferability and other rights of shares held by persons who do
not comply with that company's proper enquiries, under the
Companies Act of 1985 or that company's articles of association
(if they so provide), considering the ownership of shares; and
(viii) there may be circumstances in which a holder of shares becomes
obliged to transfer those shares under the provisions of the
Companies Act of 1985, for example following the implementation
of a takeover where minority shareholders are compulsorily bought
out or following the implementation of a scheme of arrangement.
Once a holder of shares becomes obliged to make such a transfer
he may not transfer to any other person;
(B) shareholders can make arrangements outside the Company's
constitutional documents in respect of restrictions on transfer or
preemptive rights relating to shares, about which we express no
opinion; and
(C) the obligations of the Company under the Shares will be subject to any
law from time to time in force relating to bankruptcy, insolvency,
liquidation, reorganisation or administration or any other law or
legal procedure affecting generally the enforcement of creditors'
rights.
Consent
9. We hereby consent to the disclosure of this opinion letter as an
exhibit to the Form S-8 and its consequent filing with the SEC.
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Yours faithfully,
/s/Slaughter and May
EXHIBIT 23.1
[Letterhead of Arthur Andersen]
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S8 of our report dated 11 March
1999 included in Shire Pharmaceutical Group plc's Form 20-F for the year ended
31 December 1998 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen
Arthur Andersen
Chartered Accountants
Reading
UK
22 December 1999
