-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VHa/U/vuAXYGT2Ds3PFnc0/dbeJJEbju4n1TIs/u2J9OuiBtklWigaKySdEgbRFu eKRzbPBYKPLv2FKOxKO13A== 0000950123-05-004725.txt : 20050420 0000950123-05-004725.hdr.sgml : 20050420 20050420135744 ACCESSION NUMBER: 0000950123-05-004725 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20050414 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050420 DATE AS OF CHANGE: 20050420 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OSI PHARMACEUTICALS INC CENTRAL INDEX KEY: 0000729922 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 133159796 STATE OF INCORPORATION: DE FISCAL YEAR END: 1204 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-15190 FILM NUMBER: 05761540 BUSINESS ADDRESS: STREET 1: 58 SOUTH SERVICE RD. STREET 2: SUITE 110 CITY: MELVILLE STATE: NY ZIP: 11747 BUSINESS PHONE: 631-962-2000 MAIL ADDRESS: STREET 1: 58 SOUTH SERVICE RD. STREET 2: SUITE 110 CITY: MELVILLE STATE: NY ZIP: 11747 FORMER COMPANY: FORMER CONFORMED NAME: ONCOGENE SCIENCE INC DATE OF NAME CHANGE: 19920703 8-K 1 y07983e8vk.txt FORM 8-K 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 April 14, 2005 ---------------------- Date of Report (Date of earliest event reported) OSI PHARMACEUTICALS, INC. ------------------------- (Exact name of registrant as specified in its charter) DELAWARE 0-15190 13-3159796 -------- -------- ----------- (State or other jurisdiction of (Commission (I.R.S. Employer incorporation) File Number) Identification No.) 58 SOUTH SERVICE ROAD MELVILLE, NY 11747 (Address of principal executive offices) (631) 962-2000 -------------- (Registrant's telephone number, including area code) N/A ------------- (Former name or former address, if changed since last report.) 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: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a- 12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT On April 14, 2005, OSI Pharmaceuticals, Inc. ("OSI") purchased all of the outstanding shares held by the minority shareholders of its then majority-owned subsidiary, Prosidion Limited ("Prosidion"), resulting in Prosidion becoming a wholly-owned subsidiary of OSI (the "Transaction"). Pursuant to the Transaction, OSI entered into a Share Purchase Deed Relating to Shares of Prosidion Limited (the "Share Purchase Deed") and an Amended and Restated Stock Incentive Plan Stock Award Agreement (the "Stock Award Agreement") with Dr. Daryl Granner, a member of the Board of Directors of OSI and a member of the Board of Directors of Prosidion. In connection with the Transaction, OSI agreed to pay Dr. Granner $176,000 in cash for his 11,000 ordinary shares of Prosidion, as provided in the Share Purchase Deed, which is attached hereto as Exhibit 10.1 and incorporated herein by reference. In addition, Dr. Granner agreed to exchange his rights to 2,000 ordinary shares of Prosidion for 592 shares of OSI common stock in consideration for his continued service as a member of Prosidion's Scientific Advisory Board (the "SAB"), as provided in the Stock Award Agreement, which is attached hereto as Exhibit 10.2 and incorporated herein by reference. Pursuant to the Stock Award Agreement, Dr. Granner will be issued 296 shares of OSI's common stock on October 1, 2005 and the remaining shares on October 1, 2006 provided that Dr. Granner's service as a member of the SAB has not terminated for any reason prior to each such date. ITEM 9.01 EXHIBITS
EXHIBIT NO. DESCRIPTION - ---------- ----------- 10.1 Share Purchase Deed Relating to Shares of Prosidion Limited, dated April 14, 2005, between OSI Pharmaceuticals, Inc. and Dr. Daryl Granner. 10.2 Amended and Restated Stock Incentive Plan Stock Award Agreement, dated April 14, 2005, between OSI Pharmaceuticals, Inc. and Dr. Daryl Granner.
2 SIGNATURE 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. Date: April 20, 2005 OSI PHARMACEUTICALS, INC. By: /s/ Robert L. Van Nostrand ------------------------------------ Robert L. Van Nostrand Vice President and Chief Financial Officer (Principal Financial Officer) 3 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ---------- ----------- 10.1 Share Purchase Deed Relating to Shares of Prosidion Limited, dated April 14, 2005, between OSI Pharmaceuticals, Inc. and Dr. Daryl Granner. 10.2 Amended and Restated Stock Incentive Plan Stock Award Agreement, dated April 14, 2005, between OSI Pharmaceuticals, Inc. and Dr. Daryl Granner.
4 EX-10.1 2 y07983exv10w1.txt SHARE PURCHASE DEED EXHIBIT 10.1 DATE: APRIL 14, 2005 OSI PHARMACEUTICALS, INC. (1) AND DARYL GRANNER (2) ----------------------------------------------- SHARE PURCHASE DEED RELATING TO SHARES OF PROSIDION LIMITED ----------------------------------------------- TABLE OF CONTENTS
1. INTERPRETATION........................................ 1 2. SALE AND PURCHASE OF THE SHARES....................... 2 3. COMPLETION............................................ 3 4. REPRESENTATIONS....................................... 4 5. FURTHER ASSURANCE..................................... 4 6. INVALIDITY............................................ 5 7. NON-ASSIGNMENT........................................ 5 8. NOTICES............................................... 5 9. THIRD PARTY RIGHTS.................................... 5 10. VARIATION............................................. 6 11. WAIVER................................................ 6 12. ENTIRE AGREEMENT...................................... 6 13. COUNTERPARTS.......................................... 6 14. GOVERNING LAW......................................... 7
THIS DEED is made the 14th day of April, 2005 BETWEEN: (1) OSI PHARMACEUTICALS, INC., a company incorporated under the laws of the State of Delaware, USA and having its registered office at 58 South Service Road, Melville, New York 11747, USA ("THE PARENT Company"); and (2) DARYL GRANNER of 3808 Stoney Pointe Lane NE, North Liberty, Iowa 52317 USA (THE "MEMBER"), (each a "PARTY" and collectively the "PARTIES"). RECITALS: (A) WHEREAS Prosidion Limited (the "COMPANY") was incorporated as a private company limited by shares under the laws of England and Wales on 25 November 2002 (registered number 4600121) and has an authorised share capital of (pound)2,000 divided into 14,000,000 Preferred Ordinary Shares of (pound)0.0001 each ("PREFERRED ORDINARY SHARES"); 4,000,000 A Ordinary Shares of (pound)0.0001 each ("A ORDINARY SHARES"); and 2,000,000 B Ordinary Shares of (pound)0.0001 each ("B ORDINARY SHARES"). (B) WHEREAS 11,000 B Ordinary Shares (the "SHARES") have been issue and allotted to the Member. (C) WHEREAS the Member is the legal and beneficial owner of the Shares. (D) WHEREAS the Parent Company has proposed to acquire all of the Shares from the Member for the consideration set out in clause 2.2. (E) WHEREAS the Member and the Parent Company have agreed that the Member shall sell and the Parent Company shall purchase the Shares on the terms set out in this Deed. IT IS HEREBY AGREED as follows: 1. INTERPRETATION 1.1 In this Deed, subject to any express contrary indication: (a) words importing the singular shall include the plural and vice versa; 1 (b) any reference to this Deed or any other agreement or document shall be construed as a reference to that agreement or document as it may have been, or may from time to time be, amended, varied, novated, replaced or supplemented; (c) any reference to a statute or enactment shall be construed as a reference to such statute as it may have been, or may from time to time be, amended or re-enacted and any subordinate legislation made or thing done, or may from time to time be done, under the statute or enactment provided that, as between the parties, no such amendment or modification shall apply for the purposes of this Deed to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party; and (d) any reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official, or any legal concept or thing shall in respect of any jurisdiction (other than England) be deemed to include what most nearly approximates in that jurisdiction to the English legal term. 1.2 All headings in this Deed are for ease of reference only and shall not affect the interpretation of this Deed. 1.3 Capitalized terms used in the Recitals and this Deed shall, unless the context otherwise requires, have the meaning set out in the Articles of Association of the Company. 2. SALE AND PURCHASE OF THE SHARES 2.1 At Completion (as hereinafter defined), the Member shall sell the Shares as legal and beneficial owner with full title guarantee and the Parent Company shall purchase the Shares free of any lien, claim, charge, security interest, mortgage, pledge, easement, conditional sale or other title retention agreement, defect in title, rights of third parties, restrictive covenant or other restrictions of any kind (each an "ENCUMBRANCE"). 2.2 The consideration for the purchase of the Shares shall be one hundred and seventy six thousand US dollars (US$176,000), payable in cash upon Completion or as soon as practicable thereafter without set-off or counterclaim (the "CONSIDERATION"). 2 3. COMPLETION 3.1 Completion shall take place at the offices of Prosidion Limited, Watlington Road, Oxford, OX4 6LT on April 14 2005 (the "COMPLETION"). At Completion, the Member shall deliver to the Parent Company; (a) duly executed transfers of his Shares in favour of the Parent Company together with all share certificates relating to the Shares or, in the absence of which, an indemnity letter relating to loss of such share certificate; and (b) any other documents which may be required to vest in the Parent Company the full legal and beneficial ownership of the Shares and enable the Parent Company to procure them to be registered in its name or as it may direct. 3.2 At Completion, the Parent Company shall pay the consideration payable in respect of the Shares in cash. 3.3 At Completion the Member IRREVOCABLY AND UNCONDITIONALLY APPOINTS the Parent Company and each of Colin Goddard of 30 Allenby Drive, Fort Solonga, NY 11768, USA, Bob Van Nostrand of 18 Mariners Circle, West Islip, NY 11797, USA and Barbara Wood of 200 West 90th Street, Apartment 12F, New York, NY 10024, USA acting severally (each an "ATTORNEY") to be the true and lawful Attorney of the Member with full power to appoint substitutes, pending registration of the Parent Company as the legal owner of the Shares and in its name or otherwise on its behalf as the Attorney sees fit to execute notices, instruments of proxy or other documents which may fall to be executed or signed by the Member and exercise and perform any of the acts and things to be done and performed by the Member in connection with the legal and beneficial ownership of all or any of the Shares as if the Attorney were the legal and beneficial owner of the Shares and in particular but without limitation the Attorney is appointed to: (a) attend any General Meeting (Annual and/or Extraordinary) of the Company and to represent the Member and vote on the Member's behalf and in its name; (b) exercise in the Member's name and on his behalf, all rights and privileges attached to the Shares including but not limited to the right to requisition the convening of an Extraordinary General Meeting; 3 (c) to receive, in the Member's name and on his behalf, any notice or document which the Member is entitled to receive solely by virtue of being the registered holder of the Shares including the right to receive all benefits and entitlements which attach to the Shares from the date of Completion. For the avoidance of doubt this paragraph (c) does not cover amounts due to be paid to the Member pursuant to his agreement with the Parent Company relating to the sale and purchase of the Shares; and (d) execute and do (or procure the execution and giving of) such documents, acts and things as in the opinion of the Attorney is desirable and in such manner as the Attorney thinks fit as if the Attorney were the absolute legal and beneficial owner thereof. 3.4 The power of attorney granted in Clause 3.3 shall expire on the date on which the Parent Company is registered as the holder of the Shares in the register of members of the Company. 3.5 The Member undertakes to ratify everything which the Attorney shall do or purport to do in good faith by virtue of the powers granted by the power of attorney granted in Clause 3.3. 4. REPRESENTATIONS The Member represents and warrants to the Parent Company at the date hereof that: (a) he is the legal and beneficial owner of the Shares; (b) there is no Encumbrance on, over or affecting any of the Shares; (c) no agreement to create an Encumbrance has been entered into and no claim has been made by any person (natural or otherwise) that it is entitled to any such Encumbrance; (d) he has full power and authority to enter into and exercise its rights and perform its obligations under this Deed and all other documents to be executed by him at Completion; and (e) his obligations under this Deed are valid and binding subject to applicable law. 5. FURTHER ASSURANCE The Member shall, at the expense of the Parent Company, do or procure to be done all such further acts and things and execute or procure the execution of all such other documents as the 4 Parent Company may from time to time reasonably require for the purpose of giving to the Parent Company the full benefit of all the provisions of this Deed. 6. INVALIDITY If any provision of this Deed is held to be invalid or unenforceable, then such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in this Deed but without invalidating any of the remaining provisions of this Deed. The parties shall then use all reasonable endeavours to replace the invalid or unenforceable provision by a valid provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision. 7. NON-ASSIGNMENT Neither party shall, without the consent of the other, be entitled to assign the benefit or burden of this Deed in whole or in part. 8. NOTICES 8.1 Any notice to be given under this Deed shall be in writing and shall be delivered personally or sent by pre-paid international courier to the addressee at the address set out on the face of this Deed or such other address as may be notified from time to time. A notice so addressed shall be deemed to have been received: (a) if personally delivered, at the time of delivery; and (b) if sent by international courier, two days after the date of delivery of the notice to the international courier by the sender. 8.2 For the avoidance of doubt, notice given under this Deed shall not be validly served if sent by electronic mail. 9. THIRD PARTY RIGHTS The parties do not intend that any term of this Deed shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Deed. 5 10. VARIATION No variation of any of the terms of this Deed (or of any other documents referred to herein) shall be valid unless it is in writing and signed by or on behalf of each of the parties hereto. The expression "variation" shall include any variation, supplement, deletion or replacement however effected. 11. WAIVER 11.1 Any delay by the parties in exercising, or failure to exercise, any right or remedy under this Deed shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any rights or remedy under this Deed or otherwise shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. 11.2 The rights and remedies of the parties under this Deed are cumulative and not exclusive of any rights or remedies provided by law. 12. ENTIRE AGREEMENT This Deed, together with documents described in or expressed to be entered into in connection with this Deed, constitutes the entire Deed between the parties with respect to all matters referred to herein and supersede all prior written or oral discussions, representations, negotiations and Deeds among them regarding such subject matter. Each party confirms that the terms of this Deed are fair and reasonable. 13. COUNTERPARTS This Deed may be executed in as many counterparts (including facsimile counterparts) as may be required. It shall not be necessary that the signatures of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of the counterparts. All counterparts shall collectively constitute a single Deed. It shall not be necessary in making proof of this Deed to produce or account for more than a number of counterparts containing the respective signatures of, or on behalf of, all of the parties hereto. 6 14. GOVERNING LAW 14.1 This Deed shall be governed by and construed in accordance with the laws of England and Wales. 14.2 In relation to any legal action or proceedings arising out of or in connection with this Deed ("PROCEEDINGS"), each of the parties irrevocably submits to the non-exclusive jurisdiction of the English courts and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that Proceedings have been brought in an inappropriate forum. 7 IN WITNESS WHEREOF the parties hereto have duly executed this agreement as a Deed with the intent that it is delivered as such on the day and year first above written. EXECUTED AS A DEED ) BY ) OSI PHARMACEUTICALS, INC. ) ACTING BY A DULY AUTHORISED ) REPRESENTATIVE AND IN ACCORDANCE ) WITH THE LAWS OF THE JURISDICTION OF ) ITS INCORPORATION AND ARTICLES OF ) ASSOCIATION/BY - LAWS ) ) /s/ _____________________________ EXECUTED AS A DEED BY DARYL GRANNER SIGNED: /s/ --------------------------- IN THE PRESENCE OF: Witness's Signature: /s/ -------------------------- Witness's Name: -------------------------- Witness's Address: -------------------------- 8 EX-10.2 3 y07983exv10w2.txt AMENDED STOCK INCENTIVE PLAN AGREEMENT EXHIBIT 10.2 OSI PHARMACEUTICALS, INC. AMENDED AND RESTATED STOCK INCENTIVE PLAN STOCK AWARD AGREEMENT THIS STOCK AWARD AGREEMENT (the "Agreement") is made this 14th day of April, 2005 by and between OSI PHARMACEUTICALS, INC., a Delaware corporation (the "Company") and DARYL GRANNER of 3808 Stoney Pointe Lane NE, North Liberty, Iowa 52317, USA, (the "Award Recipient"). WHEREAS, the Company has agreed to acquire the entire issued share capital of Prosidion Limited which it does not already own, a company incorporated under the laws of England and Wales ("Prosidion"); WHEREAS, the Award Recipient currently provides services to Prosidion as a member of its Scientific Advisory Board ("SAB") and the Company wishes the Award Recipient to continue to provide such services on and after the closing date of the Company's acquisition of the entire share capital of Prosidion (the "Closing Date");s WHEREAS, the Award Recipient entered into a share subscription and vesting agreement with Prosidion as of October 1, 2004 (the "Subscription Agreement") under which Prosidion agreed to issue shares of Prosidion to the Award Recipient in accordance with the terms of the Subscription Agreement; WHEREAS, Prosidion and the Award Recipient have agreed to terminate the Subscription Agreement, effective as of the Closing Date, provided that the Company agrees to issue to the Award Recipient certain shares of common stock of the Company, par value $.01 per share (the "Common Stock") on terms substantially similar to the terms of the Subscription Agreement; NOW, THEREFORE, the parties hereto mutually agree to the following terms and conditions of this Agreement: 1. STOCK AWARD. Pursuant to the terms of the OSI Pharmaceutical, Inc. Amended and Restated Stock Incentive Plan (the "Plan"), a copy of which is attached hereto as Exhibit A, the Company hereby awards to the Award Recipient the opportunity to earn up to 592 shares of Common Stock based on an exchange ratio of one (1) share in Prosidion to 0.29685 shares of Common Stock in accordance with the terms and conditions of this Agreement (the "Stock Award"). No certificates representing fractional shares of the Parent Company Stock shall be issued, and such fractional share interests will not entitle the Member to vote or to any other rights of a stockholder of the Parent Company. With respect to any fractional share interest to which the Member is entitled, the Member shall be paid an amount in cash equal to the product obtained by multiplying (i) such fractional share interest to which the Member would otherwise be entitled by (ii) $53.90. 2. CONDITIONED ON DEED OF TERMINATION AND RELEASE. The issuance of any shares of Common Stock under this Stock Award is conditioned on the Award Recipient's agreement to, and execution of, the Deed of Termination and Release in the form attached hereto as Exhibit B, effective as of the Closing Date. 3. ISSUANCE OF SHARES. As of each Vesting Date indicated in the following schedule, the Company shall issue to the Award Recipient the number of shares of Common Stock indicated in such schedule; provided, however, that such shares of Commons Stock shall not be issued if the Award Recipient's service as a member of the Board has terminated for any reason prior to such Vesting Date:
NUMBER OF SHARES OF COMMON STOCK VESTING DATE - -------------------------------- ------------ 296 October 1, 2005 296 October 1, 2006
The provision relating to fractional shares in Section 1 above shall apply. 4. TERMINATION AND FORFEITURE. This Agreement shall terminate, and the Award Recipient's interest in shares of Common Stock not yet issued hereunder shall be forfeited, as of the date the Award Recipient's service as a member of the SAB of Prosidion terminates for any reason. 5. WITHHOLDING OF APPLICABLE TAXES. It shall be a condition precedent to the Company's obligation to issue shares of Common Stock pursuant to this Stock Award that the Award Recipient pay, or make provision satisfactory to the Company for the payment of, any taxes the Company is obligated to collect with respect to the issuance of Common Stock under this Stock Award, including but not limited to, any applicable, federal, state, or local withholding or employment taxes. 6. SECURITIES LAWS. The Company shall not be obligated to issue any shares of Common Stock under this Stock Award in any manner in contravention of the Securities Act of 1933, as amended, any other federal or state securities law or the rules of any exchange or market system upon which the Common Stock is traded. The Board of Directors of the Company or the Committee (as designated under the Plan) may, at any time, require, as a condition to the issuance of shares of Common Stock hereunder, the representation or agreement of the Award Recipient to the effect that the shares issuable hereunder are acquired by the Award Recipient for investment purposes and not with a view to the resale or distribution thereof, and may require such other representations and documents as may be required to comply with applicable securities laws or the rules of any applicable exchange or market system. 7. SUBJECT TO TERMS OF PLAN. This Stock Award is awarded pursuant to, and is subject to the terms and provisions of, the Plan. All terms used herein which are defined in the Plan and not otherwise defined herein shall have the same meanings as in the Plan. To the extent that the provisions hereof conflict with those of the Plan, the provisions of the Plan shall control. All decisions or interpretations made by the Committee regarding any issue or question arising under this Stock Award or the Plan shall be final, binding and conclusive on the Company and the Award Recipient. 8. RIGHTS AS STOCKHOLDER. The Award Recipient shall have none of the rights of a stockholder with respect to shares of Common Stock that may be issued under this Agreement unless and until such shares shall be issued in accordance with the terms hereof. 9. CONTINUED SERVICE. Nothing contained herein or in the Plan shall confer to the Award Recipient any right to continue in the service of the Company, Prosidion or any affiliate of either, or interfere in any way with the right of the Company, Prosidion or any affiliate of either, to terminate the services, responsibilities or duties of the Award Recipient at any time for any reason whatsoever. 10. BINDING EFFECT. This agreement shall be binding upon and inure to the benefit of the parties hereto, including the successors and assigns of the Company and the heirs and personal representatives of the Award Recipient. -2- IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the day and year first above written. OSI PHARMACEUTICALS, INC. /s/ Robert L. Van Nostrand -------------------------- Name: Robert L. Van Nostrand Title: Vice President and Chief Financial Officer /s/ Daryl Granner ------------------- Name: DARYL GRANNER -3- -----END PRIVACY-ENHANCED MESSAGE-----