-----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, OFk5TFA2nfJ1abIGy0sYYe1jSQjEp7Wvg0VRPPndSVXlGq6UwKE58LCzhC+W69c7 8M8L4oxb4OmLxdzIR/iZZg== 0000950162-99-001222.txt : 19991224 0000950162-99-001222.hdr.sgml : 19991224 ACCESSION NUMBER: 0000950162-99-001222 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19991223 EFFECTIVENESS DATE: 19991223 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SHIRE PHARMACEUTICALS GROUP PLC CENTRAL INDEX KEY: 0000936402 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-93543 FILM NUMBER: 99780082 BUSINESS ADDRESS: STREET 1: EAST ANTON ANDOVER STREET 2: HAMPSHIRE ENGLAND CITY: ENGLAND SP10 5RG MAIL ADDRESS: STREET 1: EAST ANTON ANDOVER STREET 2: HAMPSHIRE ENGLAND CITY: ENGLAND SP10 5RG S-8 1 FORM S-8 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
CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------------------------- 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 5p per Ordinary Share .............. 9,168,475 $9.72 $89,117,577 $23,527.04 - ----------------------------------------------------------------------------------------------------------------------------------
- ---------------------- (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. 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. II-1 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) II-2 *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 II-3 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. II-4 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.
Name Capacity Date /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 II-5 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
II-6 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. EX-4.1 2 1996 EQUITY INCENTIVE PLAN 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 -2- 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 -3- 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. -4- (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- -5- 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 -6- 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 -7- 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 -8- 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 -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 -10- 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 -11- 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 -12- 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. EX-4.2 3 INCENTIVE STOCK OPTION PLAN 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. -2- 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 -3- 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- -4- 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 -5- 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 -6- 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- -7- 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 -8- 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- -9- 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 -10- (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. -11- (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. EX-5 4 OPINION OF SLAUGHTER AND MAY 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"); -2- (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 -3- (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- -4- 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. -5- Yours faithfully, /s/Slaughter and May EX-23.1 5 CONSENT OF INDEPENDENT ACCOUNTANTS 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 -----END PRIVACY-ENHANCED MESSAGE-----