EXHIBIT 37
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RULES CONSTITUTING
THE OXFORD GLYCOSYSTEMS GROUP PLC
1994 SHARE OPTION SCHEME
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[Version 2 amended in August 1995]
Xxxxx & XxXxxxxx
000 Xxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: Q171 000 0000
INDEX
CLAUSE PAGE
1. Definitions ........................................................... 1
2. Administration of the Scheme .......................................... 5
3. Grant of Options ...................................................... 6
4. Transfer of Options ................................................... 7
5. Limitations on Grants ................................................. 7
6. Special Provisions Applicable to Incentive Options .................... 8
7. Exercise of Options ................................................... 9
8. Takeovers and Liquidations ............................................ 10
9. Variation of Share Capital ............................................ 12
10. Manner of Exercise of Options ......................................... 12
11. Amendment of the Scheme ............................................... 13
12. Availability of Shares ................................................ 13
13. Term of Scheme ........................................................ 13
RULES OF THE OXFORD GLYCOSYSTEMS GROUP PLC
SHARE OPTION SCHEME
1. Definitions
In these Rules, unless the subject or context otherwise requires:
1.1. "acting in concert" shall be defined in accordance with the
City Code on Takeovers and Mergers;
1.2. "Adoption Date" means the date on which the Scheme is
approved by the Company at a general
meeting of the Company or adopted by the
Board, whichever date is earlier;
1.3. "Associated Company" has the same meaning as in Section 416
of the Income and Corporation Taxes Xxx
0000;
1.4. "Auditors" means the auditors for the time being of
the Company (acting as experts and not
as arbitrators);
1.5. "Board" means the board of directors of the
Company;
1.6. "Code" the United States Internal Revenue Code
of 1986, as amended;
1.7. "Committee" the committee of two or more
non-Employee Board members appointed by
the Board to administer the Scheme;
1.8. "Company" means Oxford GlycoSystems Group PLC;
1.9. "Control" has the same meaning as in Section 840
of the Income and Corporation Taxes Xxx
0000;
1.10. "Date of Grant" means the date on which an Option is
granted under the Scheme;
1.11. "Eligible Person" means any Employee or director of the
Company or any Associated Company, or
any individual who provides consultancy
services to the Company or any
Associated Company, but excluding
directors of the Company who are not
Employees of the Company or an
Associated Company;
1.12. "Employee" an individual who performs services
while in the employment of the Company
or any Associated Company, subject to
the control and direction of the
employing company not only as to the
work to be performed but also as to the
manner and method of performance;
1.13. "Fair Market Value" the fair market value per Share
determined in accordance with the
following provisions:
1.13.1. If the Shares (or any American
Depository Shares representing the
Shares) are not at the time listed
or admitted to trading on any
national securities exchange in the
United States but are traded on the
Nasdaq National Market, the Fair
Market Value shall be the closing
selling price per Share (or per
American Depository Share) on the
date in question, as such price is
reported by the National Association
of Securities Dealers through the
Nasdaq National Market or any
successor system. If there is no
reported closing selling price for
the Shares (or for
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the American Depository Shares
representing the Shares) on the date
in question, the closing selling
price on the last preceding date for
which such quotation exists shall be
determinative of Fair Market Value;
1.13.2. If the Shares (or any American
Depository Shares representing the
Shares) are at the time listed or
admitted to trading on any national
securities exchange in the United
States, the Fair Market Value shall
be the closing selling price per
Share (or per American Depository
Share) on the date in question on
the securities exchange determined
by the Committee to be the primary
market for the Shares (or for the
American Depository Shares
representing the Shares), as such
price is officially quoted in the
composite tape of transactions on
such exchange. If there is no
reported sale of Shares (or of the
American Depository Shares
representing the Shares) on such
exchange on the date in question,
then the Fair Market Value shall be
the closing selling price on the
exchange on the last preceding date
for which such quotations exists;
1.13.3. If the Shares (or any American
Depository Shares representing the
Shares) are on the date in question
neither listed nor admitted to
trading on any national securities
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exchange in the United States nor
traded on the Nasdaq National
Market, then the Fair Market Value
of the Shares on such date shall be
determined by the Committee after
taking into account such factors as
the Committee shall deem
appropriate;
1.14. "Incentive Option" an Option which satisfies the
requirements of section 422 of the Code;
1.15. "Limited" Oxford GlycoSystems Limited;
1.16. "Non-Statutory Option" an Option not intended to meet the
requirements of section 422 of the Code;
1.17. "Option" means a right to receive Shares granted
(or to be granted) in accordance with
these Rules;
1.18. "Scheme" means the share option scheme
constituted and governed by these Rules
as from time to time amended;
1.19. "Share" means an ordinary share in the capital
of the Company;
1.20. "Subscription Price" means the price at which each Share
subject to an Option may be acquired on
the exercise of that Option, being the
amount specified by the Committee in its
sole discretion subject to Rule 3;
1.21. "Subsisting Option" means an Option which has neither lapsed
nor been exercised;
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1.22. "Termination Date" the date referred to in Rule 13.
2. Administration of the Scheme
2.1. The Scheme shall be administered solely and exclusively by the
Committee. No non-Employee member of the Board shall be eligible to
serve on the Committee if such individual has, within the relevant
period designated below, been granted an option to acquire Shares
under this Scheme or any other share option scheme of the Company or
any Associated Company:
2.1.1. for each of the initial members of the Committee, the period
commencing with the initial public offering in the United
States of the American Depository Shares representing the
Shares of the Company and ending with the date of his or her
appointment to the Committee; or
2.1.2. for any successor or substitute member, the (12) twelve month
period immediately preceding the date of his or her
appointment to the Committee or (if shorter) the period
commencing with the initial public offering in the United
States of the American Depository Shares representing the
Shares of the Company and ending with the date of his or her
appointment to the Committee.
2.2. Members of the Committee shall serve for such period of time as the
Board may determine and shall be subject to removal by the Board at
any time.
2.3. The Committee shall have full power and authority (subject to the
express provisions of the Scheme) to establish rules and regulations
for the proper administration of the Scheme and to make such
determinations under, and issue such interpretations of, the
provisions of the Scheme and any outstanding Option grants
thereunder, as it may deem necessary and advisable. Decisions
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of the Committee shall be final and binding on all parties who have
an interest in the Scheme or any Option grant thereunder.
3. Grant of Options
3.1. At any time after the Adoption Date, the Committee may in its
absolute discretion grant Options to acquire Shares in the Company
to any number of individuals who are Eligible Persons. Such Options
may be either Incentive Options or Non-Statutory Options, at the
Committee's discretion. The Committee shall also have full authority
to determine:
3.1.1. whether the Option is to be an Incentive Option or a
Non-Statutory Option;
3.1.2. the maximum number of Shares covered by the grant, provided
that such number shall not be so large that the grant of an
Option over that number of Shares would cause the limit
specified in Rule 5 to be exceeded;
3.1.3. the time or times at which the Option is to become
exercisable;
3.1.4. the maximum term of the Option, which shall not exceed 10
years;
3.1.5. the Subscription Price at which Shares may be acquired on the
exercise of the Option (provided that, in the case of an
Incentive Option, the Subscription Price shall not be less
than 100% of the Fair Market Value of a Share on the Date of
Grant, and in the case of a Non-Statutory Option the
Subscription Price shall not be less than 85% of the Fair
Market Value of a Share on the Date of Grant).
[3.2. The Subscription Price may be denominated in sterling or in United
States dollars.]
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3.3. Options granted pursuant to Rule 3.1 above shall be subject to the
provisions of these Rules including (in relation to Incentive
Options) the provisions of Rule 6.
3.4. As soon as possible after Options have been granted the Committee
shall issue a certificate of Option in respect of each Option in
such form, not inconsistent with these Rules, as the Committee may
determine. Each Option shall be granted under the Common Seal of the
Company.
4. Transfer of Options
No Option may be transferred, assigned or charged and any purported transfer,
assignment or charge shall cause the Option to lapse forthwith. Each option
certificate shall carry a statement to this effect.
5. Limitations on Grants
No Option shall be granted pursuant to Rule 3 above if such grant would result
in the aggregate of:
5.11. the number of Shares over which Options have been granted under this
Scheme (but excluding Options which have lapsed or been
surrendered); and
5.2. the number of Shares for which individuals granted options under the
Oxford Glycosystems Limited 1989 Share Option Scheme may be required
by the Articles of Association of Limited to exchange shares in
Limited acquired pursuant to the exercise of such options (but
excluding such options which have lapsed or been surrendered)
exceeding 4,300,000 Shares.
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6. Special Provisions Applicable to Incentive Options
6.1. The provisions specified in this Rule 6 shall be applicable to all
Incentive Options granted under the Scheme. Incentive Options may
only be granted to individuals who are Employees. Options which are
specifically designated as Non-Statutory Options when granted under
the Scheme shall not be subject to such provisions.
6.2. Dollar Limitation: The aggregate Fair Market Value (determined as of
the respective Date or Dates of Grant) of the Shares for which one
or more options granted to any Employee under this Scheme (or any
other share option scheme of the Company or its Associated
Companies) may for the first time become exercisable as incentive
stock options under the United States Federal tax laws during any
one calendar year shall not exceed the sum of One Hundred Thousand
Dollars ($100,000). To the extent the Employee holds two or more
such options which become exercisable for the first time in the same
calendar year, the foregoing limitation on the exercisability of
such options as incentive stock options under the Federal tax laws
shall be applied on the basis of the order in which such options are
granted. Should the number of Shares for which any Incentive Option
first becomes exercisable in any calendar year exceed the applicable
One Hundred Thousand Dollar ($100,000) limitation, then that Option
may nevertheless be exercised in such calendar year for the excess
number of shares as a non-statutory option under the Federal tax
laws.
6.3. 10% Shareholder: If any individual to whom an Incentive Option is
granted is the owner of Shares (as determined under section 424(d)
of the Code) possessing ten per cent (10%) or more of the total
combined voting power of all classes of shares of the Company or any
one of its Associated Companies, then the exercise price per Share
shall not be less than one hundred ten per cent (110%) of the Fair
Market Value per Share on the Date of Grant and the option term
shall not exceed five (5) years measured from the Date of Grant.
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6.4. Except as modified by the preceding provisions of this Rule 6, the
provisions of all other Rules of the Scheme shall apply to all
Incentive Options granted hereunder.
7. Exercise of Options
7.1. Subject to Rules 8 and 10 and Rule 7.2 below, any Option which has
not lapsed may be exercised at the time or times specified by the
Committee pursuant to Rule 3.1.3 above.
7.2. An Option shall lapse on the earliest of the following events:
7.2.1. the end of the maximum term specified by the Committee
pursuant to Rule 3.1.4;
7.2.2. six months after the Option holder's death (provided that an
Option may be exercised only by the Option holder's personal
representatives during this six month period, and only to the
extent that it had become exercisable as at the date of death
under the terms relating to the time or times of exercise
originally imposed by the Committee pursuant to Rule 3.1.3);
7.2.3. six months after the date when the Option holder ceases to be
a director, Employee, or consultant of the Company or any
Associated Company by reason of
7.2.3.1. injury or disability (evidenced to the satisfaction of
the Board); or
7.2.3.2. redundancy (within the meaning of the Employment
Protection (Consolidation) Xxx 0000; or
7.2.3.3. retirement at contractual retirement age or early
retirement by agreement with the Company or any
Associated Company; or
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7.2.3.4. the transfer of the undertaking or part-undertaking in
which the Option holder is employed, or to which the
Option holder provides services, to a person other than
the Company or any Associated Company; or
7.2.3.5. the company for which, or to which, the Option holder
provides services ceasing to be an Associated Company of
the Company;
and is no longer continuing as a director, Employee or
consultant (provided that the above-mentioned six month period
shall be a period of twenty four months if, at the date in
question, the Shares are not tradeable on any public stock
exchange (including for this purpose the exchange known as
NASDAQ);
7.2.4. the date when the Option holder ceases to be a director,
Employee or consultant of the Company or any Associated
Company for any reason other than one of the reasons referred
to in Rule 7.2.3 above and is no longer continuing as a
director, Employee or consultant of the Company or an
Associated Company;
7.2.5. six months after the Option has become exercisable in
accordance with Rules 8.1 or 8.2 or, in the case of Rule 8.3,
the date when any person ceases to be bound or entitled as
mentioned therein.
8. Takeovers and Liquidations
8.1. If any person obtains Control of the Company as a result of making:
8.1.1. 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
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8.1.2. a general offer to acquire all the shares in the Company which
are of the same class as the Shares
then any Subsisting Option may be exercised in full (regardless of
the extent to which it had by then become exercisable under the
terms relating to the time or times of exercise originally imposed
by the Committee pursuant to Rule 3.1.3) within six months of the
time when the person making the offer has obtained Control of the
Company and any condition subject to which the offer is made has
been satisfied. Provided that in the event of Rule 8.3 applying in
relation to the same change of Control, the right to exercise a
Subsisting Option under this Rule 8.1 shall terminate upon the
person referred to in Rule 8.3 below ceasing to be bound or entitled
as referred to in Rule 8.3.
8.2. If the Company passes a resolution for voluntary winding up, any
Subsisting Option may be exercised in full (regardless of the extent
to which it had by then become exercisable under the terms relating
to the time or times of exercise originally imposed by the Committee
pursuant to Rule 3.1.3) within six months of the passing of the
resolution.
8.3. If any person becomes bound or entitled to acquire shares in the
Company under sections 428 to 430 of the Companies 1985, then any
Subsisting Option may be exercised in full (regardless of the extent
to which it had by then become exercisable under the terms relating
to the time or times of exercise originally imposed by the Committee
pursuant to Rule 3.1.3) at any time when that person remains so
bound or entitled.
8.4. For the purposes of this Rule 8, a person shall be deemed to have
obtained Control of the Company if he and others acting in concert
with him have together obtained Control of it.
8.5. The exercise of an Option pursuant to the preceding provisions of
this Rule 8 shall be subject to the provisions of Rule 10 below.
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9. Variation of Share Capital
In the event of any capitalization or rights issue or any consolidation,
sub-division or reduction of capital by the Company, the number of Shares
subject to any Option and the Subscription Price for each of those Shares, as
well as the limitation in Rule 5, shall be adjusted in such manner as the
Auditors confirm in writing to be fair and reasonable provided that the
aggregate amount payable on the exercise of an Option in full is not increased
or decreased.
10. Manner of Exercise of Options
10.1. No Option may be exercised at any time when the shares which may be
thereby acquired are not Shares as defined in Rule 1.
10.2. An Option shall be exercised by the Option holder, or as the case
may be his personal representatives, giving notice to the Company in
writing of the number of Shares in respect of which he wishes to
exercise the Option accompanied by the appropriate payment and the
relevant option certificate and shall be effective on the date of
its receipt by the Company.
10.3. Subject to Rule 10.4, payment must be made in the currency in which
the Subscription Price is denominated.
10.4. If payment must be made in United States dollars, but the
Subscription Price in dollars when converted to sterling at the date
of receipt of the payment by the Company is less than the nominal
value of a Share, then the Option holder shall be required to make a
further payment in dollars to the Company forthwith in an amount
equal to such difference per Share calculated in dollars, multiplied
by the number of Shares in relation to which he has exercised his
Option.
10.5. Shares shall be allotted and issued pursuant to a notice of exercise
within 30 days of the date of exercise, provided that the Board may
elect to allot the
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Shares to an American Depository Bank which would be required to
issue an equivalent number of American Depository Shares to the
Option holder (or as the case may be his personal representatives).
Save for any rights determined by reference to a date preceding the
date of allotment, such Shares shall rank pari passu with the other
shares of the same class in issue at the date of allotment.
11. Amendment of the Scheme
The Board has complete and exclusive power to amend or modify the Scheme (or any
component thereof) in any or all respects whatsoever, including but not limited
to the power to adopt a sub-scheme of the Scheme which would be capable of
approval as an approved share option scheme within the meaning of the United
Kingdom Income and Corporation Taxes Xxx 0000. However, no such amendment or
modification shall adversely affect rights and obligations with respect to
Options then outstanding under the Scheme, unless the holders of Options consent
to such amendments. In addition, the Board may not, without the approval of the
Company in general meeting, amend the Scheme to (i) increase the maximum number
of Shares referred to in Rule 6 (ii) materially modify the eligibility
requirements for participation in the Scheme to the advantage of participants or
(iii) materially increase the benefits accruing to participants in the Scheme.
12. Availability of Shares
The Company shall at all times keep available sufficient authorised and unissued
Shares to satisfy the exercise to the full extent still possible of all Options
which have neither lapsed nor been fully exercised, taking account of any other
obligations of the Company to issue unissued Shares.
13. Term of Scheme
The Board may, at any time, suspend or terminate the operation of the Scheme.
However, the Scheme shall, in any event, terminate on the date ten years after
the
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Adoption Date, provided that all Options outstanding as at that date shall
continue in effect thereafter in accordance with the terms on which such Options
were granted.
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VERSION 2
[NON-STATUTORY OPTION]
OPTION CERTIFICATE RECORDING THE GRANT OF A NON-STATUTORY
OPTION UNDER THE OXFORD GLYCOSYSTEMS GROUP PLC
1994 SHARE OPTION SCHEME
1. This is to certify that the Committee appointed by the Board of
Oxford GlycoSystems Group PLC ("the Company") to administer the
Company's 1994 Share Option Scheme has granted an Option to
________________ ("the Option Holder") on the ____ day of _______ to
subscribe for _________ Shares of _______ each in the Company at a
Subscription Price of ___________ per Share subject to the terms of
the Company's 1994 Share Option Scheme ("xxx Xxxxxx").
2. The Option is to be a Non-Statutory Option.
3. The Option may, if it has not lapsed pursuant to the terms of the
Scheme, be exercised in whole or in part at any time following the
earliest of the following events:
3.1 as to 20% of the Shares over which the Option was granted, the
first anniversary of the Date of Grant;
3.2 as to a further 20% of the Shares over which the Option was
granted, the second anniversary of the Date of Grant;
3.3 as to a further 20% of the Shares over which the Option was
granted, the third anniversary of the Date of Grant;
3.4 as to a further 20% of the Shares over which the Option was
granted, the fourth anniversary of the Date of Grant;
3.5 as to the final 20% of the Shares over which the Option was
granted, the fifth anniversary of the Date of Grant,
provided that the Option will not become exercisable in respect of a
further percentage of Shares after (i) either the Option Holder or
the Company or any Associated Company gives notice to the other to
terminate the Option Holder's employment, directorship on
consultancy with the Company or any Associated Company or (ii) the
Company passes a resolution for a voluntary winding-up.
4. The maximum term of the Option will be [insert number of years
subject to a maximum of ten].
5. The Option may not be transferred, assigned or charged and any
purported transfer, assignment or charge will cause the Option to
lapse forthwith.
6. This Certificate must be surrendered on the exercise in whole or in
part of the Option.
THE COMMON SEAL of }
Oxford GlycoSystems Group PLC }
was hereunto affixed in the }
presence of: }
________________________
Director
________________________
Director/Secretary
2
VERSION 2
[INCENTIVE OPTION]
OPTION CERTIFICATE RECORDING THE GRANT OF AN INCENTIVE
OPTION UNDER THE OXFORD GLYCOSYSTEMS GROUP PLC
1994 SHARE OPTION SCHEME
1. This is to certify that the Committee appointed by the Board of
Oxford GlycoSystems Group PLC ("the Company") to administer the
Company's 1994 Share Option Scheme has granted an Option to
________________ ("the Option Holder") on the _____ day of ________
to subscribe for _________ Shares of ________ each in the Company at
a Subscription Price of (pound)/$________ per Share subject to the
terms of the Company's 1994 Share Option Scheme ("xxx Xxxxxx").
2. The Option is intended to qualify as an Incentive Option pursuant to
section 422 of the Internal Revenue Code of 1986, as amended.
3. The Option may, if it has not lapsed pursuant to the terms of the
Scheme, be exercised in whole or in part at any time following the
earliest of the following events:
3.1 as to 20% of the Shares over which the Option was granted, the
first anniversary of the Date of Grant;
3.2 as to a further 20% of the Shares over which the Option was
granted, the second anniversary of the Date of Grant;
3.3 as to a further 20% of the Shares over which the Option was
granted, the third anniversary of the Date of Grant;
3.4 as to a further 20% of the Shares over which the Option was
granted, the fourth anniversary of the Date of Grant;
3.5 as to the final 20% of the Shares over which the Option was
granted, the fifth anniversary of the Date of Grant,
provided that the Option will not become exercisable in respect of a
further percentage of Shares after (i) either the Option Holder or
the Company or any Associated Company gives notice to the other to
terminate the Option Holder's employment, directorship or
consultancy with the Company or any Associated Company or (ii) the
Company passes a resolution for a voluntary winding-up.
4. The maximum term of the Option will be [insert number of years
subject to a maximum of ten].
5. The Option may not be transferred, assigned or charged and any
purported transfer, assignment or charge will cause the Option to
lapse forthwith.
6. This Certificate must be surrendered on the exercise in whole or in
part of the Option.
7. The terms of the Scheme permit the Option to be exercised during
periods of 6 or (in some cases) 24 months after the Option Holder
ceases to be an employee of the Company or any of its Associated
Companies in certain specified circumstances such as death,
disability or redundancy. It should be noted however that, if the
Option is to be treated for US income tax purposes as an Incentive
Option at the time of exercise, it must be exercised:
o within 12 months at the latest in the case of a disability
termination; and
o within 3 months in any other case where the employment comes
to an end.
Thus, where the terms of Scheme permit exercise over a longer period
following the termination of employment, the above periods should be
observed if the Option is to retain its status as an Incentive
Option. If however the terms of the 1994 Scheme provide for the
Option to lapse immediately on the termination of employment (as
2
Under Rule 7.2.4) those terms will prevail and the Option Holder
will not be able to exercise the Option during a 3 month period
after termination.
THE COMMON SEAL of }
Oxford GlycoSystems Group PLC }
was hereunto affixed in the }
presence of: }
_________________________
Director
_________________________
Director/Secretary
3
