EXHIBIT 99.3
GEMINI HOLDINGS PLC
and
[_________________________________]
INDIVIDUAL SHARE OPTION INSTRUMENT
Table of Contents
Clause Page
1. DEFINITIONS ................................................... 1
2. GRANT OF OPTION ............................................... 2
3. VESTING OF THE OPTION ......................................... 2
4. EXERCISE OF THE OPTION ........................................ 3
5. TAKEOVERS, RECONSTRUCTIONS AND WINDING-UP ..................... 4
6. ADJUSTMENT OF OPTION FOR VARIATION OF SHARE CAPITAL ........... 5
7. EXPENSES ...................................................... 6
8. ADMINISTRATION ................................................ 6
9. GENERAL ....................................................... 6
This Instrument is made the ____ day of _________________ between
Gemini Genomics PLC (registered number _______________) whose registered office
is at ______________________________ (the "Company") and _______________________
of _______________________ (the "Option Holder").
Whereas, the Company intends to grant to the Option Holder an option to
subscribe for [_______] [ordinary shares of 5p each/American Depository Receipts
each representing two ordinary shares of 5p each] in the capital of the Company
subject to the terms and conditions of this Instrument.
Now this Instrument Witnesses as follows:
1. Definitions
1.1 In this Instrument, the words and expressions set out below
shall have the meanings specified against them unless otherwise specifically
provided and any reference to a provision of an Act of Parliament shall include
any modification, consolidation, re-enactment or extension of it.
"Acquiring Company" A company which obtains Control of
the Company in accordance with
Clause 5.5.
["ADRs"] [American Depository Receipts issued
by the Bank of New York and each
representing two ordinary shares of
5p in the capital of the Company.]
"the Auditors" The auditors (acting as experts not
arbitrators) for the time being of
the Company or in the event of there
being joint auditors such one of
them as the Directors shall select.
"Control" The meaning given to that expression
by Section 840 of the Taxes Act.
"Date of Grant" The date upon which the Directors
grant an Option to the Option Holder
in accordance with Clause 2.2.
"Directors" The directors for the time being of
the Company or the directors present
at a duly convened meeting of the
board of directors or of a duly
appointed committee of the board of
directors at which a quorum is
present including, without limiting
the generality of the foregoing, the
Remuneration Committee.
"First Exercise Date" [____________________].
1.
"Issue or Re-organisation" Any issue of Shares or other
securities of the Company (other
than as consideration for an
acquisition) and/or any
capitalisation, consolidation or
subdivision or reduction of share
capital in the Company and/or any
other variation in the share capital
of the Company which in the opinion
of the Directors justifies a
variation in the number of shares
subject to an Option and/or the
Option Price pursuant to that
Option.
"the London Stock Exchange" London Stock Exchange Limited.
"the Remuneration Committee" The remuneration committee of the
board of Directors.
"Shares" Shares in the Company (or, as the
context may require, ADRs for the
time being representing the same)
whether in consequence of any Issue
or Reorganisation or otherwise.
"Subsidiary" A company which is both under the
Control of the Company and which is
a subsidiary of the Company within
the meaning of Section 736 of the
Companies Act 1985.
1.2 In this Instrument unless the context otherwise requires
words denoting the singular number shall include the plural number and words
denoting the masculine gender shall include the feminine gender.
2. Grant of Option
2.1 The Company hereby grants to the Option Holder the right to
acquire [________] [ordinary shares of 5p each/ADRs] at an option price of
[_________] per [ordinary share/ADR] (the "Option").
2.2 The Date of Grant of the Option shall be [_________________].
3. Vesting of the Option
3.1 The Option will vest and become exercisable (subject to
Clauses 4.1, 4.7 and 5) by the Option Holder as follows:
3.1.1 in respect of [_______] Shares with effect from the
Date of Grant;
3.1.2 in respect of a further [_______] Shares with effect
from [_________________];
2.
3.1.3 in respect of a further [_______] Shares with effect
from [_________________].
4. Exercise of the Option
4.1 The Option will not be exercisable until the First Exercise
Date unless the provisions of Clauses 4.7 and 5 below operate prior to the First
Exercise Date to permit the Option Holder (or his personal representative(s)) to
exercise the Option to the extent that it has already vested.
4.2 The Option Holder must exercise the Option prior to the tenth
anniversary of the Date of Xxxxx. On the tenth anniversary of the Date of Xxxxx
the Option will lapse.
4.3 The Option may be exercised in whole or in part.
4.4 The exercise of the Option shall be effected by giving notice
to the Company and otherwise in such form and manner as the Directors may from
time to time prescribe and, unless the Directors determine otherwise, any such
notice shall have effect only on receipt by the Company, together with the
appropriate payment.
4.5 Subject to Clause 4.4 below, within thirty (30) days after the
Option has been exercised, the Directors on behalf of the Company shall allot to
the Option Holder (or his nominee) or, as appropriate, procure the transfer to
him (or his nominee) of the number of Shares in respect of which the Option has
been exercised, provided that, for the avoidance of doubt, where Shares are so
allotted or transferred to a nominee, the beneficial interest in them must vest
in the person who exercised the Option.
4.6 All Shares allotted under this Instrument shall rank pari
passu in all respects with the Shares of the same class for the time being in
issue save as regards any rights attaching to such Shares by reference to a
record date prior to the date of the allotment, and in the case of the transfer
of existing Shares, the transferee shall not acquire any rights attaching to
such Shares by reference to a record date prior to the date of the transfer.
4.7 The allotment or transfer of any Shares under this Plan shall
be subject to obtaining any approval or consent mentioned in Clause 9.4 below.
4.8 In the event of a partial exercise, the Company shall, within
30 days of the partial exercise, issue to the Option Holder a new option
instrument showing the balance of the Option and a new form of exercise of that
balance.
4.9 In the event of the death of the Option Holder prior to the
exercise of the Option his personal representative(s) shall be able to exercise
the Option within a period of six (6) months following his death.
4.10 If the Option Holder dies prior to the First Exercise Date his
personal representative(s) may only exercise the Option pursuant to Clause 4.7
above to the extent the Option has vested at the date of the Option Xxxxxx's
death.
3.
5. Takeovers, Reconstructions and Winding-Up
5.1 If any person obtains Control of the Company (within the meaning
of Section 840 of the Taxes Act) as a result of making a general offer to
acquire Shares in the Company, or having obtained such Control makes such an
offer, the Directors shall within seven (7) days of becoming aware thereof
notify the Option Holder (or as the case may be his personal representative)
thereof, an Option granted under this Plan may be exercised, subject to Clause
5.4 below, within six (6) months (or such longer period as the Directors may
permit) of such notification.
5.2 For the purposes of Clause 5.1 above, a person shall be deemed to
have obtained Control of the Company if he and others acting in concert (as
defined by the City Code on Takeovers and Mergers) with him have together
obtained Control of it.
5.3 If any application is made to the Court under Section 425(1) of
the Companies Act 1985 a meeting in relation to a proposed compromise or
arrangement for the purposes of or in connection with a scheme for the
reconstruction of the Company or its amalgamation with any other company or
companies, the Directors may permit the Option to the extent it has vested
pursuant to Clause 3 above, to be exercised until the time of the meeting, such
exercise being conditional upon the Court sanctioning such compromise or
arrangement.
5.4 If any person becomes bound or entitled to acquire shares in the
Company under Sections 428 to 430F of the Companies Act 1985, or if under
Section 425 of that Act the Court sanctions a compromise or arrangement proposed
for the purposes of or in connection with a scheme for the reconstruction of the
Company or its amalgamation with any other company or companies, or if the
Company passes a resolution for voluntary winding up, or if an order is made for
the compulsory winding up of the Company, the Directors shall forthwith notify
the Option Holder (or as the case may be his personal representatives) thereof
and the Option may to the extent that it has vested pursuant to Clause 3 above
be exercised within one month of such notification, but to the extent that it is
not exercised within that period shall (notwithstanding any other provision of
this Instrument and notwithstanding that the Option did not become exercisable
during the period) lapse on the expiration thereof.
5.5 If an Acquiring Company;
5.5.1 obtains Control of the Company as a result of making:
5.5.1.1 a general offer to acquire the whole of the
issued ordinary share capital of the Company which is made on a condition such
that if it is satisfied the person making the offer will have Control of the
Company, or
5.5.1.2 a general offer to acquire all the Shares in the
Company which are of the same class as the Shares which may be acquired by the
exercise of this Option, or
5.5.2 obtains Control of the Company in pursuance of a
compromise or arrangement sanctioned by the Court under Section 425 of the
Companies Act 1985, or
4.
5.5.3 becomes bound or entitled to acquire Shares in the
Company under Sections 428 to 430F of that Act,
the Option Holder may at any time within such period as the
Acquiring Company shall specify, by agreement with the Acquiring Company,
release any Option granted under this Instrument which has not lapsed (the "Old
Option") in consideration of the grant to him of an option (the "New Option")
which is equivalent to the Old Option but relates to shares in a different
company (whether the Acquiring Company itself or some other company).
5.6 The New Option shall be regarded for the purposes of Clause 5.5
above as equivalent to the Old Option, but so that the provisions of this
Instrument shall for this purpose be construed as if:
5.6.1 the New Option were an option granted under this
Instrument at the same time as the Old Option; and
5.6.2 the expression "the Company" were defined as "a company
whose shares may be acquired by the exercise of Options granted under this
Instrument."
6. Adjustment of Option for Variation of Share Capital
6.1 Subject to Clauses 6.3 and 6.4 below, on the occurrence of an
Issue or Re-organisation the Directors may make such adjustment as it considers
appropriate under Clause 6.2.
6.2 An adjustment made under this sub-Clause shall be to one or
more of the following:
6.2.1 the number of Shares in respect of which the Option may
be exercised;
6.2.2 the price at which Shares may be acquired by the exercise
of this Option;
6.2.3 where the Option has been exercised but no Shares have
been allotted or transferred pursuant to such exercise, the number of Shares
which may be so allotted or transferred and the price at which they may be
acquired.
6.3 Except in the case of a capitalisation issue, no adjustment
under Clause 6.2 above shall be made without the prior confirmation in writing
by the Auditors that it is in their opinion fair and reasonable.
6.4 An adjustment under Clause 6.2 above may have the effect of
reducing the price at which Shares may be acquired by the exercise of the Option
to less than their nominal value, but, in the case of an Option to acquire
Shares by subscription, only if and to the extent that the Directors shall be
authorised to capitalise from the reserves of the Company a sum equal to the
amount by which the nominal value of the Shares in respect of which the Option
is exercised and which are to be allotted pursuant to such exercise exceeds the
price at which the
5.
same may be subscribed for and to apply such sum in paying up such amount on
such Shares; and so that on exercise of the Option in respect of which such
reduction shall have been made the Directors shall capitalise such (if any) and
apply the same in paying up such amount as aforesaid.
6.5 As soon as reasonably practicable after making any adjustment
under Clause 6.2 above, the Directors shall give notice in writing thereof to
the Option Holder if he is affected thereby.
7. Expenses
Any expenses of the Company involved in any issue or transfer of
shares in the name of the Option Holder or his personal representative(s) or
nominee(s) shall be payable by the Company.
8. Administration
8.1 Any notification or other notice in writing which the Company is
required to give, or may desire to give, to the Option Holder (or his personal
representative(s)) in pursuance of this Instrument shall be sufficiently given
if delivered to him by hand or sent through the post in prepaid cover addressed
to the Option Holder (or his personal representative(s)) at the last address
known to the Company as being his address. Any certificate, notification or
other notice in writing required to be given to the Company shall be properly
given if sent to or delivered to the Company at its registered office. Any
notification, certificate or other notices sent by post shall be deemed
delivered on the second day following the date of posting. All notices documents
certificates given by or to the Option Holder (or his personal
representative(s)) shall be sent at his risk.
8.2 The Option Holder (or his personal representative(s)) shall have
made available to him copies of all notices and other documents sent by the
Company to its holders of Shares generally.
9. General
9.1 The Directors shall at all times ensure that there are
sufficient Shares available as may be required to meet the subsisting rights of
the Option Holder by either ensuring that the Company shall at all times keep
available for allotment unissued Shares at least sufficient to satisfy the
Option under which Shares may be subscribed for and/or to procure that
sufficient Shares are available for transfer to satisfy the Option.
9.2 The Company shall at its expense make application to the London
Stock Exchange for admission to the Official List of all Shares allotted
pursuant to the exercise of the Option provided that Shares are at that time
listed on the London Stock Exchange.
9.3 The decision of the Directors in any dispute or question
relating to the Option shall be final and conclusive, subject to the written
confirmation of the Auditors whenever required under the provisions of this
Instrument.
6.
9.4 The grant of this Option shall be subject to obtaining any
approval or consent required under the provisions of the document "Admission of
Securities to Listing" published by the London Stock Exchange, of the City Code
on Takeovers and Mergers, or of any regulations and enactments.
9.5 In the event that Shares are transferred to the Option Holder in
pursuance of the Option, the Option Holder shall, if so required by the person
making the transfer, join that person in making a claim for relief under Section
165 of the Taxation of Chargeable Gains Act 1992 in respect of the disposal made
by him in effecting such transfer.
9.6 If the Company or any Participating Company is required to
account for any amount of Social Security Contributions that the Option Holder
is liable to pay as a result of the grant of the Option, the Option Holder shall
reimburse the Company or the Participating Company, as the case may be, in
respect of the amount of Social Security Contributions forthwith and in any
event no later than twenty-one (21) days from the Date of Grant.
9.7 If the Company or any Participating Company is required to
account for any amount of tax, duties and Social Security Contributions as a
result of the exercise of the Option, the Option Holder shall reimburse the
Company or the Participating Company, as the case may be, in respect of the
amount of tax, duties and Social Security Contributions accounted for forthwith
and in any event no later than twenty-one (21) days from the date of the
exercise of the Option.
9.8 Each Option shall be personal to the Option Holder to whom it is
granted and other than a transfer to the Option Holder's personal
representatives on death shall not be transferable, assignable or chargeable.
Any other purported transfer, assignment, charge, disposal or dealing with the
rights and interests of the Option Holder shall render the Option void.
In Witness Whereof, this Instrument has been executed as a Deed the day and
year first above written.
THE COMMON SEAL of Gemini ) ________________________________
Genomics PLC was affixed to this Deed in ) Director
the presence of: )
) ________________________________
) Director/Company Secretary
SIGNED as a Deed by )
)
)
__________________________________ )
)
in the presence of: )
7.
