As filed with the Securities and Exchange Commission on February 6, 2001
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
INHALE THERAPEUTIC SYSTEMS, INC.
(Exact name of Company as specified in its charter)
DELAWARE 94-3134940
(State of Incorporation) (I.R.S. Employer Identification No.)
----------------------
INHALE THERAPEUTIC SYSTEMS, INC.
150 INDUSTRIAL ROAD
SAN CARLOS, CA 94070
(650) 631-3100
(Address of principal executive offices and zip code)
----------------------
THE BRADFORD PARTICLE DESIGN PLC APPROVED EMPLOYEE SHARE OPTION SCHEME
THE BRADFORD PARTICLE DESIGN PLC UNAPPROVED EMPLOYEE SHARE OPTION SCHEME
AGREEMENT GRANTING OPTIONS BETWEEN MR. JOSEPH F. BOHAN AND
BRADFORD PARTICLE DESIGN PLC
DATED NOVEMBER 5, 1999
AGREEMENT GRANTING OPTIONS BETWEEN MR. JOSEPH F. BOHAN AND
BRADFORD PARTICLE DESIGN PLC
DATED OCTOBER 27, 2000
AGREEMENT GRANTING OPTIONS BETWEEN DR. BORIS SHEKUNOV AND
BRADFORD PARTICLE DESIGN PLC
DATED OCTOBER 13, 2000
AGREEMENT GRANTING OPTIONS BETWEEN MRS. MADGE HOLLOWOOD AND
BRADFORD PARTICLE DESIGN PLC
DATED OCTOBER 13, 2000
(Full title of the plans)
----------------------
COPIES TO:
AJIT S. GILL, CHIEF EXECUTIVE OFFICER MARK P. TANOURY, ESQ.
INHALE THERAPEUTIC SYSTEMS, INC. JOHN M. GESCHKE, ESQ.
150 INDUSTRIAL ROAD COOLEY GODWARD LLP
SAN CARLOS, CA 94070 FIVE PALO ALTO SQUARE
(650) 631-3100 3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(Name, address, and telephone number, (650) 843-5000
including area code, of agent for service)
1.
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CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Aggregate Registration
to be Registered Registered(1) Price per Share Offering Price(2) Fee
- ------------------------------------------------------------------------------------------------------------------------------------
Bradford Particle Design, plc Approved Employee
Share Option Scheme 40,002 $7.00 $280,014 $70.00
Bradford Particle Design, plc Unapproved Employee 26,717 $7.00 $187,019 $46.75
Share Option Scheme
Agreement Granting Options between Mr. Joseph F. Bohan and
Bradford Particle Design plc dated November 5, 1999 4,276 $7.00 $29,932 $7.48
Agreement Granting Options between Mr. Joseph F. Bohan and
Bradford Particle Design plc dated October 27, 2000 5,345 $12.40 $66,278 $16.57
Agreement Granting Options between Dr. Boris Shekunov and
Bradford Particle Design plc dated October 13, 2000 4,115 $7.00 $28,805 $7.20
Agreement Granting Options between Mrs. Madge Hollowood and
Bradford Particle Design plc dated October 13, 2000 1,828 $7.00 $12,796 $3.20
=======
Total $151.20
====================================================================================================================================
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant
to such employee benefit plans as the result of any future stock split,
stock dividend or similar adjustment of the Company's outstanding
Common Stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of
1933, as amended (the "Securities Act").
=============================================================================
2.
EXPLANATORY NOTE
The shares registered hereunder will be issued upon the exercise of
stock options assumed by Inhale Therapeutic Systems, Inc., a Delaware
corporation (the "Company"), pursuant to the terms of the Company's purchase
offer to acquire all of the issued share capital of Bradford Particle Design
plc ("Bradford") completed on January 8, 2001. These options were originally
granted to employees of Bradford under The Bradford Particle Design plc
Approved Employee Share Option Scheme, The Bradford Particle Design plc
Unapproved Employee Share Option Scheme, Agreement Granting Options Between
Mr. Joseph F. Bohan and Bradford Particle Design plc dated November 5, 1999,
Agreement Granting Options Between Mr. Joseph F. Bohan and Bradford Particle
Design plc dated October 27, 2000, Agreement Granting Options Between
Dr. Boris Shekunov and Bradford Particle Design plc dated October 13, 2000, and
Agreement Granting Options between Mrs. Madge Hollowood and Bradford Particle
Design plc dated October 13, 2000 (collectively, the "Plans.")
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Plans pursuant to Rule 428(b)(1) of the Securities
Act of 1933, as amended, (the "Securities Act").
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Inhale Therapeutic Systems, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission are incorporated by reference into this registration statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed on March 10, 2000, including all material incorporated
by reference therein;
(b) Our Amendment to Annual Report on Form 10-K/A for the fiscal year
ended December 31, 1999, filed on March 14, 2000, including all material
incorporated by reference therein;
(c) Our Amendment to Annual Report on Form 10-K/A for the fiscal year
ended December 31, 1999, filed on April 28, 2000, including all material
incorporated by reference therein;
(d) Our Definitive Proxy on Schedule 14A, filed on May 3, 2000;
(e) Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2000, filed on May 11, 2000, including all material incorporated by reference
therein;
(f) Our Amendment to Quarterly Report on Form 10-Q/A for the quarter
ended March 31, 2000, filed on May 15, 2000, including all material incorporated
by reference therein;
(g) Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2000, filed August 14, 2000, including all material incorporated by reference
therein;
(h) Our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000, filed November 14, 2000, including all material
incorporated therein;
(i) Our Current Report on Form 8-K, filed on February 1, 2000;
(j) Our Current Report on Form 8-K, filed on February 9, 2000;
(k) Our Current Report on Form 8-K, filed on February 24, 2000;
(l) Our Current Report on Form 8-K, filed on September 6, 2000;
(m) Our Current Report on Form 8-K, filed on October 10, 2000;
(n) Our Current Report on Form 8-K, filed on October 10, 2000;
3.
(o) Our Current Report on Form 8-K, filed on October 13, 2000;
(p) Our Current Report on Form 8-K, filed on October 30, 2000;
(q) Our Current Report on Form 8-K, filed on December 21, 2000;
(r) Our Current Report on Form 8-K, filed on January 11, 2001;
(s) All other reports filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the last fiscal year covered by the
Company's Annual Report referred to in (a) above; and
(t) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, including any amendments or
reports filed for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by Cooley Godward LLP, Palo Alto, California
("Cooley Godward").
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Company has
broad powers to indemnify our directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act.
The Company's Certificate of Incorporation, as amended provides for the
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Company and its stockholders. These provisions do
not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such an injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Company, for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, for any transaction from which the
director derived an improper personal benefit and for violating Section 174 of
the Delaware General Corporation Law. The provision does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
The Company has entered into agreements with its directors and executive
officers that require the Company to indemnify such persons against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Company or any of its affiliated enterprises, provided such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Company and, with respect to any criminal proceeding,
had no reasonable cause to believe his or her conduct was unlawful. The
indemnification agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT EXHIBIT
NUMBER INDEX DESCRIPTION
4.1 (1) Certificate of Incorporation of Inhale.
4.2 (1) Bylaws of Inhale.
4.
4.3 (8) Certificate of Amendment of the Amended Certificate of
Incorporation.
4.4 (2) Restated Investor Rights Agreement among Inhale and
certain other persons named therein, dated April 29, 1993,
as amended October 29, 1993.
4.5 (3) Stock Purchase Agreement between Inhale and Pfizer Inc.,
dated January 18, 1995.
4.6 (4) Form of Purchase Agreement between Inhale and the
individual Purchasers, dated January 28, 1997.
4.7 (5) Stock Purchase Agreement between Inhale and Capital
Research and Management Company, dated December 8, 1998.
4.8 (6) Purchase Agreement among Inhale and Lehman Brothers Inc.,
Deutsche Bank Securities Inc. and U.S. Bancorp Piper
Jaffray Inc. dated October 6, 1999.
4.9 (6) Registration Rights Agreement among Inhale and Lehman
Brothers Inc., Deutsche Bank Securities Inc. and U.S.
Bancorp Piper Jaffray Inc., dated October 13, 1999.
4.10 (6) Indenture between Inhale as Issuer and Chase Manhattan
Bank and Trust Company, National Association, as Trustee,
dated October 13, 1999.
4.11 (6) Form of Inhale Registration Rights Agreement, between
Inhale and Selling Shareholder, dated January 25, 2000.
4.12 (7) Purchase Agreement among Inhale and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Deutsche Bank Securities
Inc., Lehman Brothers Inc., and U.S. Bancorp Piper Jaffray
Inc., dated February 2, 2000.
4.13 (7) Resale Registration Rights Agreement among Registrant and
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Deutsche Bank Securities Inc., Lehman Brothers Inc., and
U.S. Bancorp Piper Jaffray Inc., dated February 8, 2000.
4.14 (7) Indenture between Registrant as Issuer and Chase Manhattan
Bank and Trust Company, National Association, as Trustee,
dated February 8, 2000.
4.15 (8) Specimen common stock certificate.
4.16 (9) Specimen warrants to purchase shares of common stock.
4.17 (10) Purchase Agreement among Inhale and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Deutsche Bank Securities
Inc., Lehman Brothers Inc., and U.S. Bancorp Piper Jaffray
Inc., dated October 11, 2000.
4.18 (10) Resale Registration Rights Agreement among Registrant and
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Deutsche Bank Securities, Inc., Lehman Brothers Inc., and
U.S. Bancorp Piper Jaffray Inc., dated October 17, 2000.
4.19 (10) Indenture between Registrant, as Issuer, and Chase
Manhattan Bank and Trust Company, National Association, as
Trustee, dated October 17, 2000.
5.1 (11) Opinion of Cooley Godward LLP.
23.1 (11) Consent of Ernst & Young LLP, Independent Auditors.
23.2 (11) Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 (11) Power of Attorney (contained on signature page).
99.1 (11) The Bradford Particle Design plc Approved Employee Share
Option Scheme.
99.2 (11) Form of The Bradford Particle Design plc Approved Employee
Share Option Scheme Option Certificate.
99.3 (11) The Bradford Particle Design plc Unapproved Employee Share
Option Scheme.
99.4 (11) Form of The Bradford Particle Design plc Unapproved
Employee Share Option Scheme Option Certificate.
99.5 (11) Form of Agreement Granting an Enterprise Management Incentives Option.
99.6 (11) Agreement Granting Options between Mr. Joseph F. Bohan and
Bradford Particle Design plc dated November 5, 1999.
99.7 (11) Agreement Granting Options between Mr. Joseph F. Bohan and
Bradford Particle Design plc dated October 27, 2000.
99.8 (11) Agreement Granting Options between Dr. Boris Shekunov and
Bradford Particle Design plc dated October 13, 1999.
99.9 (11) Agreement Granting Options between Mrs. Madge Hollowood
and Bradford Particle Design plc dated October 13, 1999.
99.10 (11) Form of Stock Option Assumption and Conversion Notice (the Bradford Particle Design
plc Form of Unapproved Employee Share Option Scheme-1999 Stock Option Grants).
99.11 (11) Form of Stock Option Assumption and Conversion Notice (the
Bradford Particle Design plc Approved Employee Share
Option Scheme-1999 Stock Option Grants).
5.
99.12 (11) Form of Stock Option Assumption and Conversion Notice (the
Bradford Particle Design plc Unapproved Employee Share
Option Scheme (Schedule I)-2000 Stock Option Grants)
99.13 (11) Stock Option Assumption and Conversion Notice (the Bohan
1999 Unapproved Agreement)
99.14 (11) Stock Option Assumption and Conversion Notice (the Bohan
2000 Unapproved Agreement)
(1) Incorporated by reference to the indicated exhibit in Inhale's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1998.
(2) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-1 (No. 33-75942), as amended.
(3) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-1 (No. 33-89502), as amended.
(4) Incorporated by reference to Inhale's Registration Statement on Form S-3
(No. 333-20787).
(5) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-3 (No. 333-68897), as amended.
(6) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-3 (No. 333-94161), as amended.
(7) Incorporated by reference to the indicated exhibit in Inhale's Annual
Report on Form 10-K for the year ended December 31, 1999.
(8) Incorporated by reference to the indicated exhibit in Inhale's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2000.
(9) Incorporated by reference to the indicated exhibit in Inhale's Quarterly
Report on Form 10-Q for the quarter ended September 30, 2000.
(10) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-3 (No. 333-53678), as amended.
(11) Filed herewith.
ITEM 9. UNDERTAKINGS
1. The undersigned Company hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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;
6.
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 the Securities Act and will be governed by the final adjudication
of such issue.
7.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing 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 City of San Carlos, State of California, on
February 5, 2001.
INHALE THERAPEUTIC SYSTEMS, INC.
a Delaware corporation
By: /s/ Ajit S. Gill
-----------------------------------
Ajit S. Gill
Title: Chief Executive Officer, President and
Director (Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSON BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert B. Chess, Ajit S. Gill and Brigid A. Makes
and each of them, as his or her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments, exhibits thereto and other
documents in connection therewith) to this registration statement and any
subsequent registration statement filed by the registrant pursuant to Securities
and Exchange Commission Rule 462, which relates to this registration statement
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratify and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
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:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Ajit S. Gill Chief Executive Officer, President and February 5, 2001
----------------------- Director (Principal Executive Officer)
Ajit S. Gill
/s/ Robert B. Chess Chairman of the Board February 5, 2001
-----------------------
Robert B. Chess
/s/ Brigid A. Makes Chief Financial Officer and Vice February 5, 2001
----------------------- President (Principal Financial and
Brigid A. Makes Accounting Officer)
/s/ John S. Patton Vice President and Director February 5, 2001
-----------------------
John S. Patton
/s/ James B. Glavin Director February 5, 2001
-----------------------
James B. Glavin
/s/ Melvin Perelman Director February 5, 2001
-----------------------
Melvin Perelman
/s/ Irwin Lerner Director February 5, 2001
-----------------------
Irwin Lerner
/s/ Roy A. Whitfield Director February 5, 2001
-----------------------
Roy A. Whitfield
8.
EXHIBIT INDEX
EXHIBIT EXHIBIT
NUMBER INDEX DESCRIPTION
4.1 (1) Certificate of Incorporation of Inhale.
4.2 (1) Bylaws of Inhale.
4.3 (8) Certificate of Amendment of the Amended Certificate of
Incorporation.
4.4 (2) Restated Investor Rights Agreement among Inhale and
certain other persons named therein, dated April 29, 1993,
as amended October 29, 1993.
4.5 (3) Stock Purchase Agreement between Inhale and Pfizer Inc.,
dated January 18, 1995.
4.6 (4) Form of Purchase Agreement between Inhale and the
individual Purchasers, dated January 28, 1997.
4.7 (5) Stock Purchase Agreement between Inhale and Capital
Research and Management Company, dated December 8, 1998.
4.8 (6) Purchase Agreement among Inhale and Lehman Brothers Inc.,
Deutsche Bank Securities Inc. and U.S. Bancorp Piper
Jaffray Inc. dated October 6, 1999.
4.9 (6) Registration Rights Agreement among Inhale and Lehman
Brothers Inc., Deutsche Bank Securities Inc. and U.S.
Bancorp Piper Jaffray Inc., dated October 13, 1999.
4.10 (6) Indenture between Inhale as Issuer and Chase Manhattan
Bank and Trust Company, National Association, as Trustee,
dated October 13, 1999.
4.11 (6) Form of Inhale Registration Rights Agreement, between
Inhale and Selling Shareholder, dated January 25, 2000.
4.12 (7) Purchase Agreement among Inhale and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Deutsche Bank Securities
Inc., Lehman Brothers Inc., and U.S. Bancorp Piper Jaffray
Inc., dated February 2, 2000.
4.13 (7) Resale Registration Rights Agreement among Registrant and
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Deutsche Bank Securities Inc., Lehman Brothers Inc., and
U.S. Bancorp Piper Jaffray Inc., dated February 8, 2000.
4.14 (7) Indenture between Registrant as Issuer and Chase Manhattan
Bank and Trust Company, National Association, as Trustee,
dated February 8, 2000.
4.15 (8) Specimen common stock certificate.
4.16 (9) Specimen warrants to purchase shares of common stock.
4.17 (10) Purchase Agreement among Inhale and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Deutsche Bank Securities
Inc., Lehman Brothers Inc., and U.S. Bancorp Piper Jaffray
Inc., dated October 11, 2000.
4.18 (10) Resale Registration Rights Agreement among Registrant and
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Deutsche Bank Securities, Inc., Lehman Brothers Inc., and
U.S. Bancorp Piper Jaffray Inc., dated October 17, 2000.
4.19 (10) Indenture between Registrant, as Issuer, and Chase
Manhattan Bank and Trust Company, National Association, as
Trustee, dated October 17, 2000.
5.1 (11) Opinion of Cooley Godward LLP.
23.1 (11) Consent of Ernst & Young LLP, Indpendent Auditors.
23.2 (11) Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 (11) Power of Attorney (contained on signature page).
99.1 (11) The Bradford Particle Design plc Approved Employee Share
Option Scheme.
99.2 (11) Form of The Bradford Particle Design plc Approved Employee
Share Option Scheme Option Certificate.
99.3 (11) The Bradford Particle Design plc Unapproved Employee Share
Option Scheme.
99.4 (11) Form of The Bradford Particle Design plc Unapproved
Employee Share Option Scheme Option Certificate.
99.5 (11) Form of Agreement Granting an Enterprise Management Incentives Option.
99.6 (11) Agreement Granting Options between Mr. Joseph F. Bohan and
Bradford Particle Design plc dated November 5, 1999.
99.7 (11) Agreement Granting Options between Mr. Joseph F. Bohan and
Bradford Particle Design plc dated October 27, 2000.
9.
99.8 (11) Agreement Granting Options between Dr. Boris Shekunov and
Bradford Particle Design plc dated October 13, 1999.
99.9 (11) Agreement Granting Options between Mrs. Madge Hollowood
and Bradford Particle Design plc dated October 13, 1999.
99.10 (11) Form of Stock Option Assumption and Converion Notice (the Bradford Particle Design
plc Unapproved Employee Share Option Scheme-1999 Stock Option Grants).
99.11 (11) Form of Stock Option Assumption and Conversion Notice (the
Bradford Particle Design plc Approved Employee Share
Option Scheme-1999 Stock Option Grants).
99.12 (11) Form of Stock Option Assumption and Conversion Notice (the
Bradford Particle Design plc Unapproved Employee Share
Option Scheme (Schedule I)-2000 Stock Option Grants)
99.13 (11) Stock Option Assumption and Conversion Notice (the Bohan
1999 Unapproved Agreement)
99.14 (11) Stock Option Assumption and Conversion Notice (the Bohan
2000 Unapproved Agreement)
(1) Incorporated by reference to the indicated exhibit in Inhale's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1998.
(2) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-1 (No. 33-75942), as amended.
(3) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-1 (No. 33-89502), as amended.
(4) Incorporated by reference to Inhale's Registration Statement on Form S-3
(No. 333-20787).
(5) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-3 (No. 333-68897), as amended.
(6) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-3 (No. 333-94161), as amended.
(7) Incorporated by reference to the indicated exhibit in Inhale's Annual
Report on Form 10-K for the year ended December 31, 1999.
(8) Incorporated by reference to the indicated exhibit in Inhale's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2000.
(9) Incorporated by reference to the indicated exhibit in Inhale's Quarterly
Report on Form 10-Q for the quarter ended September 30, 2000.
(10) Incorporated by reference to the indicated exhibit in Inhale's Registration
Statement on Form S-3 (No. 333-53678), as amended.
(11) Filed herewith.
10.
EXHIBIT 5.1
OPINION OF COOLEY GODWARD LLP
February 5, 2001
Inhale Therapeutic Systems, Inc.
150 Industrial Road
San Carlos, CA 94070
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Inhale Therapeutic Systems, Inc, a Delaware corporation (the
"Company"), of a Registration Statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission (the "Commission")
covering up to 82,283 shares of the Company's Common Stock, $.001 par value (the
"Shares"), for issuance pursuant to the Company's assumption of such options
issued under the Bradford Particle Design plc Approved Employee Share Option
Scheme, The Bradford Particle Design plc Unapproved Employee Share Option
Scheme, that certain Agreement Granting Options between Mr. Joseph F. Bohan and
Bradford Particle Design plc dated November 5, 1999, that certain Agreement
Granting Options between Mr. Joseph F. Bohan and Bradford Particle Design plc
dated October 27, 2000, that certain Agreement Granting Options between Dr.
Boris Shekunov and Bradford Particle Design plc dated October 13, 1999 and that
certain Agreement Granting Options between Mrs. Madge Hollowood and Bradford
Particle Design plc dated October 13, 1999 (collectively, the "Option
Agreements") and assumed pursuant to the terms of the Purchase Offer by which
the Company acquired all of the issued share capital of Bradford effective
January 8, 2001.
In connection with this opinion, we have examined and relied upon the
Registration Statement and related Prospectus, the Company's Certificate of
Incorporation, as amended, and Bylaws, as currently in effect, and the originals
or copies certified to our satisfaction of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement and the Option Agreements, and the options granted thereunder will
be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
/s/ Mark P. Tanoury
- ------------------------------------
Mark P. Tanoury
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to The Bradford Particle Design, plc Employee
Share Option Scheme of Inhale Therapeutic Systems, Inc. of our report dated
January 24, 2000, with respect to the financial statements of Inhale
Therapeutic Systems, Inc. included in its Amended Annual Report (Form 10-K/A)
for the year ended December 31, 1999, filed with the Securities and Exchange
Commission and our report dated January 5, 2001 with respect to the financial
statements of Bradford Particle Design plc included in Inhale Therapeutic
Systems, Inc.'s Current Report on Form 8-K filed with the Securities and
Exchange Commission on January 11, 2001.
/s/ Ernst & Young LLP
- ---------------------
Palo Alto, California
February 5, 2001
EXHIBIT 99.1
THE BRADFORD PARTICLE DESIGN PLC
APPROVED EMPLOYEE SHARE OPTION SCHEME
New Bridge Street Consultants
20 Little Britain
London EC1A 7DH
Ref: N/3155/UES0S99.DOC
Date adopted: 22 July 1999
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION................................. 1
2. ELIGIBILITY.................................................... 2
3. GRANT OF OPTIONS............................................... 3
4. LIMITS......................................................... 4
5. EXERCISE OF OPTIONS............................................ 5
6. TAKOVER, RECONSTRUCTION AND WINDING-UP......................... 8
7. VARIATION OF CAPITAL........................................... 10
8. ALTERATIONS.................................................... 11
9. MISCELLANEOUS.................................................. 12
i.
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
1.
1. DEFINITIONS AND INTERPRETATION
(1) In this Scheme, unless the context otherwise requires:
"THE BOARD" means the board of directors of the Company or a committee
appointed by them;
"THE COMPANY" means Bradford Particle Design plc (registered in England
and Wales No. 2998064);
"EXIT EVENT" means either:
(a) the Company offering its Shares to the public (by whatever means)
and the admission of those Shares to a public market;
(b) any of the events referred to in Rule 6 below;
(c) in relation to any Option, the nine year and six months
anniversary of the Grant Date; or
(d) any other event which results in a material change in respect of
shareholdings in the Company where the Board in its discretion
considers such change to be comparable to the events set out at
(a) or (b) above;
"THE GRANT DATE" in relation to an option means the date on which the
option was granted; "Group Member" means:
(a) a Participating Company or a body corporate which is (within the
meaning of section 736 of the Companies Act 1985) the Company's
holding company or a subsidiary of the Company's holding company;
or
(b) a body corporate which is (within the meaning of section 258 of
that Act) a subsidiary undertaking of a body corporate within
paragraph (a) above and has been designated by the Board for this
purpose;
"THE LONDON STOCK EXCHANGE" means London Stock Exchange Limited;
"PARTICIPANT" means a person who holds an option granted under this
Scheme;
"PARTICIPATING COMPANY" means the Company or any Subsidiary. or any
company which is not under the control of any single person, but is
under the control of two persons (within the meaning of section 840 of
the Taxes Act 1988), one of them being the Company, and to which the
Board has with the approval of the Inland Revenue resolved that this
Scheme shall for the time being extend;
"SCHEDULE 9" means Schedule 9 to the Taxes Act o1988;
"SHARES" means ordinary shares of 10p each in the Company;
"SUBSIDIARY" means a body corporate which is a subsidiary of the
Company (within the meaning of section 736 of the Companies Act 1985)
and of which the Company has control (within the meaning of section 840
of the Taxes Act 1988);
"THE TAXES ACT 1988" means the Income and Corporation Taxes Act 1988;
and expressions not otherwise defined in this Scheme have the same
meanings as they have in Schedule 9.
(2) Any reference in this Scheme to any enactment includes a reference to
that enactment as from time to time modified, extended or re-enacted.
(3) Expressions in italics are for guidance only and do not form part of
this Scheme.
2. ELIGIBILITY
(1) Subject to sub-rule (3) below, a person is eligible to be granted an
option if (and only if) he is a full-time director or qualifying
employee of a Participating Company.
(2) For the purposes of sub-rule (1) above:
(a) a person shall be treated as a FULL-TIME DIRECTOR of a
Participating Company if he is obliged to devote to the
performance of the duties of his office or employment with that
and any other Participating Company not less than 25 hours a
week;
(b) a QUALIFYING EMPLOYEE, in relation to a Participating Company, is
an employee of the Participating Company (other than one who is a
director of a Participating Company).
(3) A person is not eligible to be granted an option at any time:
(a) within the two years immediately preceding the date on which he
is bound to retire in accordance with the terms of his contract
of employment; or
(b) when he is not eligible to participate in this Scheme by virtue
of paragraph 8 of Schedule 9 (MATERIAL INTEREST IN CLOSE
COMPANY).
3. GRANT OF OPTIONS
(1) Subject to Rule 4 below, the Board may grant an option to acquire
Shares which satisfy the requirements of paragraphs 10 to 14 of
Schedule 9 (FULLY PAID UP, UNRESTRICTED, ORDINARY SHARE CAPITAL), upon
the terms set out in this Scheme and upon such other objective terms as
the Board may specify, to any person who is eligible to be granted an
option in accordance with Rule 2 above; and for this purpose an option
to acquire includes an option to purchase and an option to subscribe.
(2) The price at which Shares may be acquired by the exercise of an option
shall be determined by the Board before its grant, but shall not be
less than the higher of:
(a) if shares of the same class as those Shares are quoted in the
London Stock Exchange Daily Official List, the middle-market
quotation of shares of that class (as derived from that List) on
the Grant Date or such other dealing day as may be agreed with
the Inland Revenue;
(b) if paragraph (a) above does not apply, the market value (within
the meaning of Part VIII of the Taxation of Chargeable Gains Act
1992) of Shares of that class, as agreed in advance for the
purposes of this Scheme with the Shares Valuation Division of the
Inland' Revenue, on the Grant Date or such other day as may be
agreed with the Inland Revenue; and
(c) in the case of an option to acquire shares only by subscription,
the nominal value of those shares.
(3) An option may only be granted prior to the occurrence of an Exit Event.
(4) An option may not be granted unless and until this Scheme is approved
by the Inland Revenue under Schedule 9.
(5) An option granted to any person:
(a) shall not, except as provided in Rule 5(4) below, be capable of
being transferred by him; and
(b) shall lapse forthwith if he is adjudged bankrupt.
4. LIMITS
(1) No options shall be granted in any year which would, at the time they
are granted, cause the number of Shares which shall have been or may be
issued in pursuance of options granted under this Scheme, any other
employees' share scheme or by virtue of any arrangements with any
employee or consultant to exceed such number as represents 4 per cent.
of the ordinary share capital of the Company in issue at that time.
(2) No person shall be granted options which would, at the time they are
granted, cause the market value of the Shares for which he may acquire
in pursuance of options granted at that time under this Scheme to
exceed 4 times the total remuneration (excluding benefits in kind)
expressed as an annual rate payable by the Participating Companies to
him as at that time; and for the purposes of this sub-rule:
(a) any option which shall have been released to any extent shall be
treated to that extent as if it were still exercisable; and
(b) where a payment of remuneration is made otherwise than in
sterling, the payment shall be treated as being of the amount of
sterling ascertained by applying such rate of exchange published
in a national newspaper as the Board shall reasonably determine.
(3) No person shall be granted options which would, at the time they are
granted, cause the aggregate market value of the Shares which he may
acquire in pursuance of options granted to him under this Scheme or
under any other share option scheme, not being a savings-related share
option scheme, approved under Schedule 9 and established by the Company
or by any associated company of the Company (and not exercised) to
exceed or further exceed L30,000.
(4) For the purposes of this Rule, the market value of the Shares in
relation to which an option was granted shall be calculated:
(a) in the case of an option granted under this Scheme, as on the day
by reference to which the price at which shares may be acquired
by the exercise thereof was determined in accordance with
Rule 3(2) above;
(b) in the case of an option granted under any other approved scheme,
as at the time when it was granted or, in a case where an
agreement relating to the shares has been made under paragraph 29
of Schedule 9, such earlier time or times as may be provided in
the agreement; and
(c) in the case of any other option, as on the day or days by
reference to which the price at which shares may be acquired by
the exercise thereof was determined.
(5) Any option granted under this Scheme shall be limited and take effect
so that the above limits are complied with.
5. EXERCISE OF OPTIONS
(1) The exercise of any option shall be effected in the form and manner
prescribed by the Board.
(2) Subject to sub-rules (4) and (5) below and to sub-rules (1) and (3) of
Rule 6 below, an option may not be exercised before the occurrence of
an Exit Event.
(3) Subject to sub-rule (4) and paragraphs (a) and (c) of sub-rule
(5) below and to Rule 6(4) below, an option may not be exercised if THE
RELEVANT CONDITION is not satisfied; and in
this sub-rule and Rule 6(4) below the relevant condition is the
condition related to performance (if any) which is specified by the
Board under Rule 3(1) above.
(4) If any Participant dies, any option granted to him may (and must, if at
all) be exercised by his personal representatives within 12 months
after the date of his death, provided that his death occurs at a time
when either he is a director or employee of a Group Member or he is or
would but for sub-rule (3) above be entitled to exercise the option by
virtue of sub-rule (5) below.
(5) If any Participant ceases to be a director or employee of a Group
Member (otherwise than by reason of his death), the following
provisions apply in relation to any option granted to him:
(a) if he so ceases by reason of injury, disability or redundancy
(within the meaning of the Employment Rights Act 1996), or by
reason only that his office or employment is in a company which
ceases to be a Group Member, or relates to a business or part of
a business which is transferred to a person who is not a Group
Member, the option may (and subject to sub-rule (4) above must,
if at all) be exercised within the exercise period;
(b) if he so ceases by reason of retirement on reaching the age at
which he is bound to retire in accordance with the terms of his
contract of employment, the option may (and subject to sub-rule
(4) above must, if at all) be exercised within the exercise
period, but subject to sub-rule (3) above;
(c) if he so ceases for any other reason, the option may not be
exercised at all unless the Board shall so permit, in which event
it may (and subject to sub-rule (4) above must, if at all) be
exercised to the extent permitted by the Board within the
exercise period;
and in this sub-rule the EXERCISE PERIOD is the period which
shall commence on the later of the date of cessation and the
occurrence of an Exit Event and expire 12 months after the
commencement of such period, 42 months after the Grant Date,
42 months after the last date prior to his so ceasing on which he
exercised an
option (not being one granted under a savings-related share
option scheme) in circumstances in which paragraphs (a) and (b)
of section 185(3) of the Taxes Act 1988 applied, whichever shall
be the latest.
(6) A Participant shall not be treated for the purposes of sub-rule (5)
above as ceasing to be a director or employee of a Group Member until
such time as he is no longer a director or employee of any Group
Member, and a female Participant who ceases to be a director or
employee by reason of pregnancy or confinement and who exercises her
right to return to work under the Employment Rights Act 1996 before
exercising her option shall be treated for those purposes as not having
ceased to be a director or employee.
(7) Subject to sub-rule (4) above, but notwithstanding any other provision
of this Scheme, an option may not be exercised after the expiration of
the period of 10 years (or such shorter period as the Board may have
determined before its grant) beginning with the Grant Date.
(8) A Participant shall not be eligible to exercise an option at any time
when he is not eligible to participate in this Scheme by virtue of
paragraph 8 of Schedule 9 (MATERIAL INTEREST IN CLOSE COMPANY).
(9) Within 30 days after an option has been exercised by any person, the
Board shall allot to him (or a nominee for him) or, as appropriate,
procure the transfer to him (or a nominee for him) of the number of
shares in respect of which the option has been exercised, provided
that:
(a) the Board considers that the issue or transfer thereof would be
lawful in all relevant jurisdictions; and
(b) in a case where a Group Member is obliged to (or would suffer a
disadvantage if it were not to) account for any tax (in any
jurisdiction) for which the person in question is liable by
virtue of the exercise of the option and/or for any social
security contributions recoverable from the person in question
(together, the "Tax Liability"), that person has either:
(i) made a payment to the Group Member of an amount equal to
the Tax Liability; or
(ii) entered into arrangements acceptable to that or another
Group Member to secure that such a payment is made (whether
by authorising the sale of some or all of the shares on his
behalf and the payment to the Group Member of the relevant
amount out of the proceeds of sale or otherwise).
(10) All shares allotted under this Scheme shall rank equally in all
respects with shares of the same class then in issue except for any
rights attaching to those shares by reference to a record date prior to
the date of the allotment.
6. TAKOVER, RECONSTRUCTION AND WINDING-UP
(1) If any person obtains control of the Company (within the meaning of
section 840 of the Taxes Act 1988) the Board shall within 7 days of
becoming aware thereof notify every Participant thereof and, subject to
sub-rules (3), (4), (5) and (7) of Rule 5 above, any option may be
exercised within one month (or such longer period as the Board may
permit) of the notification.
(2) For the purposes of sub-role (1) above, 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.
(3) 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 Board shall forthwith notify every Participant
thereof and, subject to sub-rules (3), (4), (5) and (7) of Rule 5
above, any option may 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 Scheme) lapse
on the expiration of that period.
(4) In relation to an option which would but for Rule 5(3) above be
exercisable by virtue of an event mentioned in sub-rule (1) or (3)
above, the Board may at its discretion, and acting fairly and
reasonably, treat the relevant condition as satisfied if, at the time
of the event, the Board cannot determine whether it is in fact
satisfied.
(5) If any company ("the acquiring company"):
(a) obtains control of the Company as a result of making:
(i) 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
(ii) 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 options granted under this
Scheme, or
(b) 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 Article 418 of the Companies (Northern
Ireland) Order 1986, or
(c) becomes bound or entitled to acquire shares in the Company under
sections 428 to 430F of that Act or Articles 421 to 423 of that
Order,
any Participant may at any time within the appropriate period (which
expression shall be construed in accordance with paragraph 15(2) of
Schedule 9), by agreement with the acquiring company, release any
option which has not lapsed ("the old option") in consideration of the
grant to him of an option ("the new option") which (for the purposes of
that paragraph) is equivalent to the old option but relates to shares
in a different company (whether the acquiring company itself or some
other company falling within paragraph 10(b) or (c) of Schedule 9).
(6) The new option shall not be regarded for the purposes of sub-rule (5)
above as equivalent to the old option unless the conditions set out in
paragraph 15(3) of Schedule 9 are
satisfied, but so that the provisions of this Scheme shall for this
purpose be construed as if:
(a) the new option were an option granted under this Scheme at the
same time as the old option;
(b) except for the purposes of the definitions of "Group Member",
"Participating Company" and "Subsidiary" in Rule 1(I) above and
the reference to "the Board" in Rule 5(7) above, the expression
"the Company" were defined as "a company whose shares may be
acquired by the exercise of options granted under this Scheme";
(c) the relevant condition referred to in Rule 5(3) above had been
satisfied; and
(d) Rule 8(2) below were omitted.
(7) If:
(a) the events referred to in this Rule 6 are part of an arrangement
("a Reorganisation") which will mean that the Company will be
under the control of another company;
(b) the persons who owned shares in the Company immediately before
the change of control will immediately afterwards own at least
50% of the shares in that other company
then the Board may in its discretion determine that an option shall not
become exercisable or lapse as a result of that Reorganisation and that
the provisions of sub-rule(5) above will apply to any option held by
Participant. Where sub-rule (5) above is applied in these
circumstances, the provisions of sub-rule (6) above will also apply but
with the omission of sub-rule (6)(c).
7. VARIATION OF CAPITAL
(1) Subject to sub-rule (3) below, in the event of any variation of the
share capital of the Company, the Board may make such adjustments as it
considers appropriate under sub-rule (2) below.
(2) An adjustment made under this sub-rule shall be to one or more of the
following:
(a) the number of shares in respect of which any option may be
exercised;
(b) the price at which shares may be acquired by the exercise of any
option;
(c) where any option has been exercised but no shares have been
allotted or transferred pursuant to the exercise, the number of
shares which may be so allotted or transferred and the price at
which they may be acquired.
(3) At a time when this Scheme is approved by the Inland Revenue under
Schedule 9, no adjustment under sub-rule (2) above shall be made
without the prior approval of the Inland Revenue.
(4) An adjustment under sub-rule (2) above may have the effect of reducing
the price at which shares may be acquired by the exercise of an option
to less than their nominal value, but only if and to the extent that
the Board 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 the exercise exceeds the price at which the shares
may be subscribed for and to apply that sum in paying up that amount on
the shares; and so that on the exercise of any option in respect of
which such a reduction shall have been made the Board shall capitalise
that sum (if any) and apply it in paying up that amount.
8. ALTERATIONS
(1) Subject to sub-rules (2), (4) and (5) below, the Board may at any time
alter this Scheme or the terms of any option granted under it (having
regard to the fact that, if an alteration which does not solely relate
to a special term is made at a time when this Scheme is
approved by the Inland Revenue under Schedule 9, the approval will not
thereafter have effect unless the Inland Revenue have approved the
alteration).
(2) Subject to sub-rule (3) below, no alteration to the advantage of the
persons to whom options may be granted shall be made under sub-rule
(1) above to any of Rules 2, 4(1) to (4) inclusive, 7(1) and
(2) without the prior approval by ordinary resolution of the members
of the Company in general meeting.
(3) Sub-rule (2) above shall not apply to:
(a) any minor alteration to benefit the administration of this
Scheme, to take account of a change in legislation or to obtain
or maintain favourable tax, exchange control or regulatory
treatment for Participants or any Group Member; or
(b) any alteration solely relating to a special term.
(4) No alteration to the disadvantage of any Participant shall be made
under sub-rule (1) above other than to a special term unless:
(a) the Board shall have invited every relevant Participant to give
an indication as to whether or not he approves the alteration;
and
(b) the alteration is approved by a majority of those Participants
who have given such an indication.
(5) No alteration which solely relates to a special term subject to which
an option has been granted shall be made under sub-rule (1) above
unless:
(a) there shall have occurred an event which shall have caused the
Board reasonably to consider that the special term would not,
without the alteration, achieve its original purpose; and
(b) the Board shall act fairly and reasonably in making the
alteration.
(6) Any reference in this Rule to a special term is a reference to a term
specified by the Board as mentioned in Rule 3(1) above or a term of the
Schedule to this Scheme.
9. MISCELLANEOUS
(1) The rights and obligations of any individual under the terms of his
office or employment with any Group Member shall not be affected by his
participation in this Scheme or any right which he may have to
participate in it, and an individual who participates in it shall waive
any and all rights to compensation or damages in consequence of the
termination of his office or employment for any reason whatsoever
insofar as those rights arise or may arise from his ceasing to have
rights under or be entitled to exercise any option as a result of such
termination.
(2) In the event of any dispute or disagreement as to the interpretation of
this Scheme, or as to any question or right arising from or related to
this Scheme, the decision of the Board shall be final and binding upon
all persons.
(3) Any notice or other communication under or in connection with this
Scheme may be given by personal delivery or by sending it by post, in
the case of a company to its registered office, and in the case of an
individual to his last known address, or, where he is a director or
employee of a Group Member, either to his last known address or to the
address of the place of business at which he performs the whole or
substantially the whole of the duties of his office or employment.
EXHIBIT 99.2
THE BRADFORD PARTICLE DESIGN PLC
APPROVED EMPLOYEE SHARE OPTION SCHEME ("THE SCHEME")
OPTION CERTIFICATE
THIS DOCUMENT IS IMPORTANT. A form of notice for use by the Participant for the
exercise of the option is printed on the reverse of this Certificate.
Name of participant:
Date of grant:
Number of ordinary shares:
Price per ordinary share: L
Last date for exercise of option:
THIS IS TO CERTIFY THAT the Option Holder named above has been granted an option
under the Scheme to acquire the above number of ordinary shares in Bradford
Particle Design plc (" the Company"), at the above price per ordinary share,
upon the terms set out in the Scheme.
Executed by BRADFORD PARTICLE DESIGN PLC as a Deed
Signed....................................(Director)
Signed....................................(Director)
EXHIBIT 99.3
THE BRADFORD PARTICLE DESIGN PLC
UNAPPROVED EMPLOYEE SHARE OPTION SCHEME
[WITH SCHEDULE 1 CONTAINING MODIFICATION TO MEET EMI REQUIREMENTS]
New Bridge Street Consultants
20 Little Britain
London EC1A 7DH
Ref: N/3155/UES0S99.DOC
Date adopted: 22 July 1999
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION..................................... 1
2. ELIGIBILITY........................................................ 2
3. GRANT OF OPTIONS................................................... 2
4. LIMITS............................................................. 3
5. EXERCISE OF OPTIONS................................................ 3
6. TAKEOVER, RECONSTRUCTION AND WINDING-UP............................ 5
7. VARIATION OF CAPITAL............................................... 7
8. ALTERATIONS........................................................ 8
9. MISCELLANEOUS...................................................... 8
i.
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
1.
1. DEFINITIONS AND INTERPRETATION
(1) In this Scheme, unless the context otherwise requires:
"THE BOARD" means the board of directors of the Company or a committee
appointed by them;
"THE COMPANY" means Bradford Particle Design plc (registered in England
and Wales No. 2998O64);
"EXIT EVENT" means either:
(a) the Company offering its Shares to the public (by whatever means)
and the admission of those Shares to a public market;
(b) any of the events referred to in Rule 6 below;
(c) in relation to any Option, the nine year and six months
anniversary of the Grant Date; or
(d) any other event which results in a material change in respect of
shareholdings in the Company where the Board in its discretion
considers such change to be comparable to the events set out at
(a) or (b) above;
"THE GRANT DATE" in relation to an option means the date on which the
option was granted;
"GROUP MEMBER" means:
(a) a Participating Company or a body corporate which is (within the
meaning of section 736 of the Companies Act 1985) the Company's
holding company or a subsidiary of the Company's holding company;
or
(b) a body corporate which is (within the meaning of section 258 of
that Act) a subsidiary undertaking of a body corporate within
paragraph (a) above and has been designated by the Board for this
purpose;
"THE LONDON STOCK EXCHANGE" means London Stock Exchange plc;
"PARTICIPANT" means a person who holds an option granted under this
Scheme;
"PARTICIPATING COMPANY" means the Company or any Subsidiary or any
company which is not under the control of any single person, but is
under the control of two persons (within the meaning of section 840 of
the Taxes Act 1988), one of them being the Company, and to which the
Board has resolved that this Scheme shall for the time being extend;
"SCHEDULE 9" means Schedule 9 to the Taxes Act 1988;
1.
"SHARES" means ordinary shares of 10p each in the Company;
"SUBSIDIARY" means a body corporate which is a subsidiary of the
Company (within the meaning of section 736 of the Companies Act 1985)
and of which the Company has control (within the meaning of section 840
of the Taxes Act 1988);
"THE TAXES ACT 1988" means the Income and Corporation Taxes Act 1988;
and expressions not otherwise defined in this Scheme have the same
meanings as they have in Schedule 9.
(2) Any reference in this Scheme to any enactment includes a reference to
that enactment as from time to time modified, extended or re-enacted.
(3) Expressions in italics are for guidance only and do not form part of
this Scheme.
2. ELIGIBILITY
(1) Subject to sub-rule (3) below, a person is eligible to be granted an
option if (and only if) he is a qualifying employee of a Participating
Company.
(2) For the purposes of sub-rule (1) above a QUALIFYING EMPLOYEE, in
relation to a Participating Company, is an employee of the
Participating Company (whether or not he is also a director of a
Participating Company).
(3) A person is not eligible to be granted an option at any time within the
two years immediately preceding the date on which he is bound to retire
in accordance with the terms of his contract of employment.
3. GRANT OF OPTIONS
(1) Subject to Rule 4 below, the Board may grant an option to acquire
Shares upon the terms set out in this Scheme and upon such other
objective terms as the Board may specify, to any person who is eligible
to be granted an option in accordance with Rule 2 above; and for this
purpose an option to acquire includes an option to purchase and an
option to subscribe.
(2) The price at which Shares may be acquired by the exercise of an option
shall be determined by the Board before its grant, but shall not be
less than the higher of:
(a) if shares of the same class as those Shares are quoted in the
London Stock Exchange Daily Official List, the middle-market
quotation of shares of that class (as derived from that List) on
the Grant Date or such other dealing day as may be agreed with
the Inland Revenue;
(b) if paragraph (a) above does not apply, the market value (within
the meaning of Part VIII of the Taxation of Chargeable Gains Act
1992) of Shares of that class on the Grant Date; and
2.
(c) in the case of an option to acquire shares only by subscription,
the nominal value of those shares.
(3) An option may only be granted prior to the occurrence of an Exit Event.
(4) An option granted to any person:
(a) shall only, except as provided in Rule 5(4) below, be capable of
being transferred by him with the prior consent in writing of the
Board; and
(b) shall lapse forthwith if he is adjudged bankrupts.
4. LIMITS
(1) No options shall be granted in any year which would, at the time they
are granted, cause the number of Shares which shall have been or may be
issued in pursuance of options granted under this Scheme, any other
employees' share scheme or by virtue of any arrangements with any
employee or consultant to exceed such number as represents 4 per cent.
of the ordinary share capital of the Company in issue at that time.
(2) No person shall be granted options which would, at the time they are
granted, cause the market value of the Shares for which he may acquire
in pursuance of options granted at that time under this Scheme to
exceed 4 times the total remuneration (excluding benefits in kind)
expressed as an annual rate payable by the Participating Companies to
him as at that time; and for the purposes of this sub-rule:
(a) any option which shall have been released to any extent shall be
treated to that extent as if it were still exercisable; and
(b) where a payment of remuneration is made otherwise than in
sterling, the payment shall be treated as being of the amount of
sterling ascertained by applying such rate of exchange published
in a national newspaper as the Board shall reasonably determine.
(3) For the purposes of this Rule, the market value of the Shares in
relation to which an option was granted shall be calculated:
(a) in the case of an option granted under this Scheme, as on the day
by reference to which the price at which shares may be acquired
by the exercise thereof was determined in accordance with Rule
3(2) above;
(b) in the case of any other option, as on the day or days by
reference to which the price at which shares may be acquired by
the exercise thereof was determined.
(4) Any option granted under this Scheme shall be limited and take effect
so that the above limits are complied with.
3.
5. EXERCISE OF OPTIONS
(1) The exercise of any option shall be effected in the form and manner
prescribed by the Board.
(2) Subject to sub-rules (4) and (5) below and to sub-rules (1) and (3) of
Rule 6 below, an option may not be exercised before the occurrence of
an Exit Event.
(3) Subject to sub-rule (4) and paragraphs (a) and (c) of sub-rule (5)
below and to Rule 6(4) below, an option may not be exercised if the
relevant condition is not satisfied; and in this sub-rule and Rule 6(4)
below THE RELEVANT CONDITION is the condition related to performance
(if any) which is specified by the Board under Rule 3(1) above.
(4) If any Participant dies, any option granted to him may (and must, if at
all) be exercised by his personal representatives within 12 months
after the date of his death, provided that his death occurs at a time
when either he is a director or employee of a Group Member or he is or
would but for sub-rule (3) above be entitled to exercise the option by
virtue of sub-rule (5) below.
(5) If any Participant ceases to be a director or employee of a Group
Member (otherwise than by reason of his death), the following
provisions apply in relation to any option granted to him:
(a) if he so ceases by reason of injury, disability or redundancy
(within the meaning of the Employment Rights Act 1996), or by
reason only that his office or employment is in a company which
ceases to be a Group Member, or relates to a business or part of
a business which is transferred to a person who is not a Group
Member, the option may (and subject to sub-rule (4) above must,
if at all) be exercised within the exercise period;
(b) if he so ceases by reason of retirement on reaching the age at
which he is bound to retire in accordance with the terms of his
contract of employment, the option may (and subject to sub-rule
(4) above must, if at all) be exercised within the exercise
period, but subject to sub-rule (3) above;
(c) if he so ceases for any other reason, the option may not be
exercised at all unless the Board shall so permit, in which event
it may (and subject to sub-rule (4) above must, if at all) be
exercised to the extent permitted by the Board within the
exercise period;
and in this sub-rule THE EXERCISE PERIOD is the period which
shall commence on the later of the date of cessation and the
occurrence of an Exit Event and expire 12 months after the
commencement of such period.
(6) A Participant shall not be treated for the purposes of sub-rule (5)
above as ceasing to be a director or employee of a Group Member until
such time as he is no longer a director or employee of any Group
Member, and a female Participant who ceases to be a director or
employee by reason of pregnancy or confinement and who exercises her
right to return to
4.
work under the Employment Rights Act 1996 before exercising her option
shall be treated for those purposes as not having ceased to be a
director or employee.
(7) Notwithstanding any other provision of this Scheme, an option may not
be exercised after the expiration of the period of 10 years (or such
shorter period as the Board may have determined before its grant)
beginning with the Grant Date.
(8) Within 30 days after an option has been exercised by any person, the
Board shall allot to him (or a nominee for him) or, as appropriate,
procure the transfer to him (or a nominee for him) of the number of
shares in respect of which the option has been exercised, provided
that:
(a) the Board considers that the issue or transfer thereof would be
lawful in all relevant jurisdictions; and
(b) in a case where a Group Member is obliged, to (or would suffer a
disadvantage if it were not to) account for any tax (in any
jurisdiction) for which the person in question is liable by
virtue of the exercise of the option and/or for any social
security contributions recoverable from the person in question
(together, the "Tax Liability"), that person has either:
(i) made a payment to the Group Member of an amount equal to
the Tax Liability; or
(ii) entered into arrangements acceptable to that or another
Group Member to secure that such a payment is made (whether
by authorising the sale of some or all of the shares on his
behalf and the payment to the Group Member of the relevant
amount out of the proceeds of sale or otherwise).
(9) All shares allotted under this Scheme shall rank equally in all
respects with shares of the same class then in issue except for any
rights attaching to those shares by reference to a record date prior to
the date of the allotment.
6. TAKEOVER, RECONSTRUCTION AND WINDING-UP
(1) If any person obtains control of the Company (within the meaning of
section 840 of the Taxes Act 1988) the Board shall within 7 days of
becoming aware thereof notify every Participant thereof and, subject to
sub-rules (3), (4), (5) and (7) of Rule 5 above, any option may be
exercised within one month (or such longer period as the Board may
permit) of the notification.
(2) For the purposes of sub-rule (1) above, 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.
(3) 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
5.
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 Board shall forthwith notify
every Participant thereof and, subject to sub-rules (3), (4), (5) and
(7) of Rule 5 above, any option may 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 Scheme)
lapse on the expiration of that period.
(4) In relation to an option which would but for Rule 5(3) above be
exercisable by virtue of an event mentioned in sub-rule (1) or (3)
above, the Board may at its discretion, and acting fairly and
reasonably, treat the relevant condition as satisfied if, at the time
of the event, the Board cannot determine whether it is in fact
satisfied.
(5) If any company ("the acquiring company"):
(a) obtains control of the Company as a result of making
(i) 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
(ii) 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 options granted under this
Scheme, or
(b) 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 Article 418 of the Companies (Northern
Ireland) Order 1986, or
(c) becomes bound or entitled to acquire shares in the Company under
sections 428 to 430F of that Act or Articles 421 to 423 of that
Order,
any Participant may at any time within the appropriate period (which
expression shall be construed in accordance with paragraph 15(2) of
Schedule 9), by agreement with the acquiring company, release any
option which has not lapsed ("the old option") in consideration of the
grant to him of an option ("the new option") which (for the purposes of
that paragraph) is equivalent to the old option but relates to shares
in a different company (whether the acquiring company itself or some
other company.
(6) The new option shall not be regarded for the purposes of sub-rule (5)
above as equivalent to the old option, but so that the provisions of
this Scheme shall for this purpose be construed as if:
(a) the new option were an option granted under this Scheme at the
same time as the old option;
(b) except for the purposes of the definitions of "Group Member",
"Participating Company" and "Subsidiary" in Rule 1(1) above and
the reference to "the Board"
6.
in Rule 5(7) above, the expression "the Company" were defined as
"a company whose shares may be acquired by the exercise of
options granted under this Scheme";
(c) the relevant condition referred to in Rule 5(3) above had been
satisfied; and
(d) Rule 8(2) below were omitted.
(7) If:
(a) the events referred to in this Rule 6 are part of an arrangement
("a Reorganisation") which will mean that the Company will be
under the control of another company;
(b) the persons who owned shares in the Company immediately before
the change of control will immediately afterwards own at least
50% of the shares in that other company
then the Board may in its discretion determine that an option shall not
become exercisable or lapse as a result of that Reorganisation and that
the provisions of sub-rule(5) above will apply to any option held by
Participant. Where sub-rule (5) above is applied in these
circumstances, the provisions of sub-rule (6) above will also apply but
with the omission of sub-rule (6)(c).
7. VARIATION OF CAPITAL
(1) Subject to sub-rule (3) below, in the event of any variation of the
share capital of the Company, the Board may make such adjustments as it
considers appropriate under sub-rule (2) below.
(2) An adjustment made under this sub-rule shall be to one or more of the
following:
(a) the number of shares in respect of which any option may be
exercised;
(b) the price at which shares may be acquired by the exercise of any
option;
(c) where any option has been exercised but no shares have been
allotted or transferred pursuant to the exercise, the number of
shares which may be so allotted or transferred and the price at
which they may be acquired.
(3) An adjustment under sub-rule (2) above may have the effect of reducing
the price at which shares may be acquired by the exercise of an option
to less than their nominal value, but only if and to the extent that
the Board 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 the exercise exceeds the price at which the shares
may be subscribed for and to apply that sum in paying up that amount on
the shares; and so that on the exercise of
7.
any option in respect of which such a reduction shall have been made
the Board shall capitalise that sum (if any) and apply it in paying up
that amount.
8. ALTERATIONS
(1) Subject to sub-rules (2), (4) and (5) below, the Board may at any time
alter this Scheme or the terms of any option granted under it.
(2) Subject to sub-rule (3) below, no alteration to the advantage of the
persons to whom options may be granted shall be made under sub-rule (1)
above to any of Rules 2, 4(1) to (4) inclusive, 7(1) and (2) without
the prior approval by ordinary resolution of the members of the Company
in general meeting.
(3) Sub-rule (2) above shall not apply to:
(a) any minor alteration to benefit the administration of this
Scheme, to take account of a change in legislation or to obtain
or maintain favourable tax, exchange control or regulatory
treatment for Participants or any Group Member; or
(b) any alteration solely relating to a special term.
(4) No alteration to the disadvantage of any Participant shall be made
under sub-rule (1) above other than to a special term unless:
(a) the Board shall have invited every relevant Participant to give
an indication as to whether or not he approves the alteration;
and
(b) the alteration is approved by a majority of those Participants
who have given such an indication.
(5) No alteration which solely relates to a special term subject to which
an option has been granted shall be made under sub-rule (1) above
unless:
(a) there shall have occurred an event which shall have caused the
Board reasonably to consider that the special term would not,
without the alteration, achieve its original purpose; and
(b) the Board shall act fairly and reasonably in making the
alteration.
(6) Any reference in this Rule to a special term is a reference to a term
specified by the Board as mentioned in Rule 3(1) above or a term of the
Schedule to this Scheme.
9. MISCELLANEOUS
(1) The rights and obligations of any individual under the terms of his
office or employment with any Group Member shall not be affected by his
participation in this Scheme or any right which he may have to
participate in it, and an individual who participates in it shall waive
any and all rights to compensation or damages in consequence of the
termination
8.
of his office or employment for any reason whatsoever insofar as those
rights arise or may arise from his ceasing to have rights under or be
entitled to exercise any option as a result of such termination.
(2) In the event of any dispute or disagreement as to the interpretation of
this Scheme, or as to any question or right arising from or related to
this Scheme, the decision of the Board shall be final and binding upon
all persons.
(3) Any notice or other communication under or in connection with this
Scheme may be given by personal delivery or by sending it by post, in
the case of a company to its registered office, and in the case of an
individual to his last known address, or, where he is a director or
employee of a Group Member, either to his last known address or to the
address of the place of business at which he performs the whole or
substantially the whole of the duties of his office or employment.
9.
THE BRADFORD PARTICLE DESIGN PLC
UNAPPROVED EMPLOYEE SHARE OPTION SCHEME
SCHEDULE 1
ENTERPRISE MANAGEMENT INCENTIVES OPTIONS
1. INTERACTION WITH SCHEME
The provisions of this Schedule 1 shall, in addition to the provisions
of the Scheme, apply in relation to the grant and exercise of EMI
Options, and for this purpose, references to the Scheme shall include
references to this Schedule 1.
2. DEFINITIONS AND INTERPRETATIONS
"EMI OPTION" means an Option which is a qualifying option to acquire
shares for the purposes of Schedule 14;
"QUALIFYING SUBSIDIARY" means a Subsidiary which meets the conditions
of paragraph 15 of Schedule 14 (A 75% SUBSIDIARY);
"SCHEDULE 14" means Schedule 14 to the Finance Act 2000;
and expressions not otherwise defined in this Scheme have the same
meanings as they have in Schedule 9 or Schedule 14 as the case may be.
3. ELIGIBILITY
(1) A person is eligible to be granted an EMI Option:
(a) if (and only if) he is a key employee (whether or not also a
director) of the Company or a Qualifying Subsidiary which is a
Participating Company for whom there are commercial reasons
for an EMI Option to be granted in order to recruit or retain
him; and
(b) if his committed time to the relevant company amounts to at
least 25 hours a week, or if less, 75% of his working time, in
compliance with paragraph 29 of Schedule 14.
(2) A person is not eligible to be granted an EMI Option at any time when
he is not eligible to participate in the Scheme by virtue of paragraph
30 of Schedule 14 (NO MATERIAL INTEREST REQUIREMENT).
4. GRANT OF OPTIONS
When granting an Option, the Board shall specify whether the Option is
an EMI Option.
1.
5. LIMITS
(1) No person shall be granted EMI Options which would, at the time they
are granted, result in that person exceeding the L100,000 maximum
entitlement as prescribed in paragraph 10 of Schedule 14.
(2) No more than 15 Participants may hold EMI Options at any one time.
(3) The Board may only grant EMI Options whilst the requirements of
Schedule 14 are met and if any of the requirements are not met, the
Option shall continue to subsist but not as an EMI Option.
6. TAKEOVER, RECONSTRUCTION AND WINDING-UP
(1) For the avoidance of doubt, the acquiring company referred to in
sub-role (5) of Rule 6 will not be required to offer a new option that
meets the requirements of paragraphs 61 to 63 of Schedule 14 in
consideration for a Participant releasing his EMI Option.
(2) Any new sub-rule (5)(d) of Rule 6, stating "obtains all the shares of
the Company as a result of qualifying exchange of shares within the
meaning of paragraph 60 of Schedule 14" will be added.
7. VARIATION OF CAPITAL
In the case of any variation of the share capital of the Company that
is within paragraph 49 of Schedule 14, the Board shall not be required
to seek the prior approval of the Inland Revenue in relation to any EMI
Option granted under the Scheme.
8. ALTERATIONS
(1) Sub-rules (4) to (6) of Rule 8 shall not apply to an EMI Option.
(2) No alteration to the disadvantage of any Participant holding an EMI
Option shall be made, unless that Participant has been consulted and
has agreed to the alteration, except any alteration to an EMI Option as
a result of an event within paragraph 49(1) of Schedule 14.
9. MISCELLANEOUS
Notwithstanding the generality of sub-rule (1) of Rule 9, a Participant
will not be entitled to any compensation or damages in respect of an
EMI Option losing its tax favoured status by reason of the requirements
of Schedule 14 not being met, the occurrence of a disqualifying event,
or otherwise.
2.
EXHIBIT 99.4
THE BRADFORD PARTICLE DESIGN PLC
UNAPPROVED EMPLOYEE SHARE OPTION SCHEME ("THE SCHEME")
OPTION CERTIFICATE
THIS DOCUMENT IS IMPORTANT. A form of notice for use by the Participant for the
exercise of the option is printed on the reverse of this Certificate.
Name of participant:
Date of grant:
Number of ordinary shares:
Price per ordinary share: L
Last date for exercise of option:
THIS IS TO CERTIFY THAT the Option Holder named above has been granted an option
under the Scheme to acquire the above number of ordinary shares in Bradford
Particle Design plc ("the Company"), at the above price per ordinary share,
upon the terms set out in the Scheme.
Executed by BRADFORD PARTICLE DESIGN PLC as a Deed
Signed................................(Director)
Signed................................(Director)
EXHIBIT 99.5
Dated 2000
---------------------------------
-----------------------
AND
BRADFORD PARTICLE DESIGN PLC
--------------------------------------
AGREEMENT GRANTING AN ENTERPRISE
MANAGEMENT INCENTIVES OPTION
--------------------------------------
THIS AGREEMENT is made the day of 2000
BETWEEN
(1) ________________ of __________________________ ("THE OPTIONHOLDER");
(2) BRADFORD PARTICLE DESIGN PLC (company number 2998064 ) whose registered
office is at 69 Listerhills Science Park, Campus Road, Bradford BD7 1HR
("THE COMPANY")
WHEREAS
(A) The Company has established The Bradford Particle Design Limited
Unapproved Employee Share Option Scheme together with Schedule 1 ("THE
SCHEME") under which options may be granted to selected employees of the
Company.
(B) The Company wishes to grant an option to the Optionholder under
Schedule 1 of the Scheme (as amended from time to time) subject to the
following variations as set out in this Agreement.
IT IS HEREBY AGREED as follows:
1. In this Agreement any term defined in the Scheme (as amended from time
to time) shall have the same meaning herein.
2. The Company grants to the Optionholder an option ("THE OPTION") to
acquire _____ ordinary shares in the Company in accordance with the
terms of this Agreement.
3. The price at which the ordinary shares may be acquired by the exercise
of the Option is L___ per share.
4. The rules of the Scheme (a copy of which is attached as Appendix A) are
hereby incorporated into this Agreement, and the Option is granted
subject to these terms unless varied by this Agreement.
5. The ordinary shares to be acquired by the Optionholder upon the exercise
of the Option shall be subject to the Company's Memorandum and Articles
of Association (as amended from time to time), and the relevant
provisions of these documents that describe the restrictions attaching
to the ordinary shares are attached as Appendix B.
6. The Option may be exercised by the Optionholder by giving notice to the
Company in the form of the notice attached as Appendix C.
7. The Option has been granted by the Company under the provisions of
Schedule 14 to the Finance Act 2000.
8. It shall be the joint responsibility of the Optionholder and the Company
to file a notice of grant of the Option (in the form attached as
Appendix D) with the Inland Revenue within 30 days of the date of this
Agreement.
IN WITNESS whereof this Agreement is executed as a Deed the day and year first
above written.
-1-
Signed as a Deed by
- --------------------------------------- )
in the presence of: )
Signature of witness ...........................................
Name of witness ...........................................
Address of witness ...........................................
...........................................
...........................................
Occupation of witness ...........................................
Executed as a Deed by
BRADFORD PARTICLE DESIGN PLC
Signed ............................................ Director
Signed ............................................ Director/Company Secretary
-2-
APPENDIX A
RULES OF THE SCHEME
APPENDIX B
RELEVANT RESTRICTIONS CONTAINED IN THE COMPANY'S
MEMORANDUM AND ARTICLES OF ASSOCIATION
APPENDIX C
NOTICE OF EXERCISE
THE BRADFORD PARTICLE DESIGN PLC
ENTERPRISE MANAGEMENT INCENTIVES OPTIONS
NOTICE OF EXERCISE
NOTE: YOU ARE ADVISED TO CONSULT YOUR PROFESSIONAL ADVISER BEFORE
EXERCISING YOUR OPTION.
This notice shall take effect only upon receipt by Bradford Particle Design plc
("the Company").
To: the Directors, Bradford Particle Design plc
1. I hereby exercise the Option described in the enclosed Option Agreement
in respect of .............. ordinary shares in the Company.
2. I enclose a cheque made payable to the Company for L..........in
full payment for the shares.
3. I am of the opinion that no income tax or National Insurance is payable
because the Option is an EMI Option to which Schedule 14 of the Finance
Act 2000 applies, the conditions of which have been met, and there has
been no disqualifying event that would have resulted in the option
losing its qualifying status. If I am incorrect in my view, I
acknowledge that I will need to settle the Tax Liability (as defined in
the Option Agreement) before shares will be issued or transferred to
me.
Signature of Optionholder: .................................................
Date: .................................................
Daytime Telephone Number: .................................................
Full Name: .................................................
NAME IN CAPITALS: .................................................
Address: .................................................
.................................................
.................................................
APPENDIX D
NOTICE OF GRANT
TO BE SENT TO:
SMALL COMPANY ENTERPRISE SUPPORT CENTRE
TIDO
TY GLAS
LLANISHEN
CARDIFF
CF14 52G
FAX: 029 2032 7398
WITHIN 30 DAYS OF THE DATE OF THIS AGREEMENT
ENTERPRISE MANAGEMENT INCENTIVES
NOTICE OF THE GRANT OF AN OPTION UNDER SCHEDULE 14 FINANCE ACT 2000
- --------------------------------------------------------------------------------
1. DETAILS OF THE COMPANY WHOSE SHARES ARE THE SUBJECT OF THE AGREEMENT:
Name: Bradford Particle Design plc
Registered number: 2998064
Address of registered office:
69 Listerhills Science Park, Campus Road, Bradford BD7 1HR
- --------------------------------------------------------------------------------
2. DETAILS OF THE EMPLOYER COMPANY GIVING THIS NOTICE:
Name: Bradford Particle Design plc
Name of the Tax Office to which the company's accounts are sent for Corporation
Tax assessment:
________________________________
Corporation Tax reference _ _ _ _ _ _ _ _ _
Name and reference of the Tax Office which deals with the tax liabilities of
this company's employees:
PAYE tax reference _ _ _ _ _ _ _ _ _
- --------------------------------------------------------------------------------
3. DETAILS OF THIS OPTION, AND THIS EMPLOYEE'S OTHER OPTIONS:
Date of grant: _ _ / _ _ / _ _ _ _
Total market value (at date of grant) of this employee's unexercised EMI
options, including this option: L __________________
Total market value (at date of grant) of this employee's unexercised CSOP and
EMI Options in employee's employer company, or any other group company:
L __________________
Select one:
/ / The market value of the shares under this option at the date
of its grant has been agreed with SVD as L __________ per share, OR
/ / The market value has not been agreed with SVD, OR
/ / The company's shares were listed on a Recognised Stock Exchange at
L __________________ per sHARe, at date of grant.
- --------------------------------------------------------------------------------
4. DETAILS OF AND DECLARATION BY THE EMPLOYEE TO WHOM THIS OPTION HAS BEEN
GRANTED:
Name in full: _____________________________
National Insurance number: _ _ / _ _ / _ _ / _ _ /_ _ / _
I declare that I am committed to working for the Qualifying Company whose shares
are the subject of this option, and/or for Qualifying Subsidiaries of that
company, for: (select one)
At least 25 hours a week, OR IF NOT TRUE, At least 75% of my Working Time.
Signature: _____________________________ Date: _ _ / _ _ /_ _ _ _
- --------------------------------------------------------------------------------
5. DECLARATION BY A DIRECTOR OR THE SECRETARY OF THE EMPLOYER COMPANY:
Name in full: _____________________________
I ATTACH A COPY OF THE OPTION AGREEMENT.
I declare that the option set out in the attached agreement satisfies the
requirements of the Schedule in respect of: (select one)
/ / All the shares, or / / ____________ shares (enter number)
I also declare that to the best of my knowledge and belief, all the information
given above is correct and complete.
Signature: _____________________________ Date: _ _ / _ _ / _ _ _ _
- --------------------------------------------------------------------------------
EXHIBIT 99.6
Dated November 5, 1999
MR JOSEPH F BOHAN
AND
BRADFORD PARTICLE DESIGN PLC
-----------------------------------------------------------
AGREEMENT GRANTING OPTIONS
-----------------------------------------------------------
1.
THIS AGREEMENT is made the fifth day of November, 1999.
BETWEEN
(1) MR JOSEPH F BOHAN of 123 Blackberry Lane, Amherst, Massachusetts,
01002-3526, USA ("THE PARTICIPANT")
(2) BRADFORD PARTICLE DESIGN PLC (Company Number 2898064) whose registered
office is at 69 Listerhills Science Park, Campus Road, Bradford, West
Yorkshire, BD7 1HR ("THE COMPANY")
WHEREAS
(A) The Company has established The Bradford Particle Design plc Unapproved
Employee Share Option Scheme ("THE SCHEME") under which options may be
granted to selected employees of the Company.
(B) The Company wishes to grant an option to the Participant on terms which
are similar to the terms which apply to options granted under the
Scheme (as amended from time to time) to employees of the Company.
IT IS HEREBY AGREED as follows:-
1. In this Agreement any term defined in the Scheme (as amended from time
to time) shall have the same meaning herein and the rules of the Scheme
are hereby incorporated into this Agreement unless varied by this
Agreement.
2. The Company grants to the Participant an option to acquire 2,000 shares
in accordance with the terms of this Agreement.
3. The price at which shares may be acquired by the exercise of an option
is L10.00 per share.
4. Rule 2(3) of the Scheme (as amended from time to time) shall not apply
to the options granted to the Participant under this Agreement.
5. Rule 5 (Exercise of Options) of the Scheme (as amended from time to
time) shall apply to the options granted to the Participant under this
Agreement with the following modifications:
(a) in sub-rule 5(3) there shall not be any "relevant condition";
(b) in sub-rule 5(4) the words "or he supplies his services to a
Group Member" are inserted after the words "Group Member";
(c) sub-rule 5(5) shall be deleted and replaced with the following
sub-rule:
"If any Participant ceases to be a director or an employee of a
Group Member or ceases to provide his services to a Group
1.
Member (otherwise than by reason of his death), the following
provisions apply in relation to any option granted to him;
(a) if he so ceases by reason of injury or disability the option may
(and subject to sub-rule (4) above must, if at all) be exercised
within the exercise period);
(b) if he so ceases by reason of the Company to which he supplies his
services ceasing to be a Group Member or by reason of the
business or part of the business to which he supplies his
services being transferred to a person who is not a Group Member,
the option may (and subject to sub-rule (4) above must, if at
all) be exercised within the exercise period;
(c) if he so ceases for any other reason the option may be not be
exercised at all unless the Board shall so permit, in which event
it may (and subject to sub-rule (4) above must, if at all) be
exercised to the extent permitted by the Board within the
exercise period;
and in this sub-rule the exercise period is the period which
shall commence on the later of the date of cessation and the
grant of an exit event unexpired 12 months after the commencement
of such period.
6. Rule 6 (Takeover, Reconstruction and Winding-up) of the Scheme (as
amended from time to time) shall apply to the option granted to the
Participant under this Agreement with the following modification:
(a) the cross references to the provisions of Rule 5 of the Scheme
shall be construed as references to Rule 5 of the Scheme as
amended by this Agreement.
7. Rule 7 (Variation of Capital) of the Scheme shall apply to the option
granted to the Participant under this Agreement mutatis mutandis.
8. The Participant waives any and all rights to compensation or damages in
consequences of the Company terminating its agreement with the
Participant for the provision of the Participant's services for any
reason whatsoever in so far as the rights to compensation or damages
arise or may arise from the Participant ceasing to have rights under or
to be entitled to exercise any option as a result of such termination.
9. The Participant acknowledges that:
(a) any options he receives pursuant to this Agreement shall not be
qualifying incentive stock options; and
(b) any securities which he receives pursuant to this Agreement will
be restricted securities (as that term is defined in Rule 144 of
the US Securities Act of 1933).
10. Any notice or other communication required to be given under this
Agreement:
(a) to the Company shall be addressed and delivered to the Company at
its registered office for the time being (marked for the
attention of the Company Secretary);
2.
(b) to the Participant shall be addressed and delivered to the
Participant to either his last known address or to the address of
the place of business at which he performs the whole or
substantially the whole of his services for a Group Member
or in either case at such other address and/or marked for such other
person's attention as may be notified by one party to the other party
from time to time for this purpose.
11. Any notice or other communication to be given under this Agreement may
be given by facsimile transmission or by first class prepaid post and
shall be effective at the later of the time of receipt and the normal
business opening time following such receipt.
12. This Agreement may be signed by each party on separate counterparts and
when taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by any such counterpart.
13. This Agreement shall be governed by and construed in all respects in
accordance with English law.
IN WITNESS whereof this Agreement is executed as a Deed the day and year first
above written
Executed as a Deed by MR JOSEPH F BOHAN
/s/ Joseph F. Bohan
- ----------------------------------------
JOSEPH F BOHAN
- ----------------------------------------
Date
- ----------------------------------------
Signature of Witness
- ----------------------------------------
Name of Witness
- ----------------------------------------
Occupation
- ----------------------------------------
Date
Executed as a Deed by
BRADFORD PARTICLE DESIGN PLC
Signed Director
------------------------------------
Signed Director/Company Secretary
------------------------------------
3.
EXHIBIT 99.7
Dated October 27, 2000
MR JOSEPH F BOHAN
AND
BRADFORD PARTICLE DESIGN PLC
-----------------------------------------------------------
AGREEMENT GRANTING OPTIONS
-----------------------------------------------------------
1.
THIS AGREEMENT is made the twenty-seventh day of October, 2000.
BETWEEN
(1) MR JOSEPH F BOHAN of 123 Blackberry Lane, Amherst, Massachusetts,
01002-3526, USA ("THE PARTICIPANT")
(2) BRADFORD PARTICLE DESIGN PLC (Company Number 2898064) whose registered
office is at 69 Listerhills Science Park, Campus Road, Bradford, West
Yorkshire, BD7 1HR ("THE COMPANY")
WHEREAS
(A) The Company has established The Bradford Particle Design plc Unapproved
Employee Share Option Scheme ("THE SCHEME") under which options may be
granted to selected employees of the Company.
(B) The Company wishes to grant an option to the Participant on terms which
are similar to the terms which apply to options granted under the
Scheme (as amended from time to time) to employees of the Company.
IT IS HEREBY AGREED as follows:-
1. In this Agreement any term defined in the Scheme (as amended from time
to time) shall have the same meaning herein and the rules of the Scheme
are hereby incorporated into this Agreement unless varied by this
Agreement.
2. The Company grants to the Participant an option to acquire 2,500 shares
in accordance with the terms of this Agreement.
3. The price at which shares may be acquired by the exercise of an option
is L17.70 per share.
4. Rule 2(3) of the Scheme (as amended from time to time) shall not apply
to the options granted to the Participant under this Agreement.
5. Rule 5 (Exercise of Options) of the Scheme (as amended from time to
time) shall apply to the options granted to the Participant under this
Agreement with the following modifications:
(a) in sub-rule 5(3) there shall not be any "relevant condition";
(b) in sub-rule 5(4) the words "or he supplies his services to a
Group Member" are inserted after the words "Group Member";
(c) sub-rule 5(5) shall be deleted and replaced with the following
sub-rule:
"If any Participant ceases to be a director or an employee of a
Group Member or ceases to provide his services to a Group
1.
Member (otherwise than by reason of his death), the following
provisions apply in relation to any option granted to him;
(a) if he so ceases by reason of injury or disability the option may
(and subject to sub-rule (4) above must, if at all) be exercised
within the exercise period);
(b) if he so ceases by reason of the Company to which he supplies his
services ceasing to be a Group Member or by reason of the
business or part of the business to which he supplies his
services being transferred to a person who is not a Group Member,
the option may (and subject to sub-rule (4) above must, if at
all) be exercised within the exercise period;
(c) if he so ceases for any other reason the option may be not be
exercised at all unless the Board shall so permit, in which event
it may (and subject to sub-rule (4) above must, if at all) be
exercised to the extent permitted by the Board within the
exercise period;
and in this sub-rule the exercise period is the period which
shall commence on the later of the date of cessation and the
grant of an exit event unexpired 12 months after the commencement
of such period.
6. Rule 6 (Takeover, Reconstruction and Winding-up) of the Scheme (as
amended from time to time) shall apply to the option granted to the
Participant under this Agreement with the following modification:
(a) the cross references to the provisions of Rule 5 of the Scheme
shall be construed as references to Rule 5 of the Scheme as
amended by this Agreement.
7. Rule 7 (Variation of Capital) of the Scheme shall apply to the option
granted to the Participant under this Agreement mutatis mutandis.
8. The Participant waives any and all rights to compensation or damages in
consequences of the Company terminating its agreement with the
Participant for the provision of the Participant's services for any
reason whatsoever in so far as the rights to compensation or damages
arise or may arise from the Participant ceasing to have rights under or
to be entitled to exercise any option as a result of such termination.
9. The Participant acknowledges that:
(a) any options he receives pursuant to this Agreement shall not be
qualifying incentive stock options; and
(b) any securities which he receives pursuant to this Agreement will
be restricted securities (as that term is defined in Rule 144 of
the US Securities Act of 1933).
10. Any notice or other communication required to be given under this
Agreement:
(a) to the Company shall be addressed and delivered to the Company at
its registered office for the time being (marked for the
attention of the Company Secretary);
2.
(b) to the Participant shall be addressed and delivered to the
Participant to either his last known address or to the address of
the place of business at which he performs the whole or
substantially the whole of his services for a Group Member
or in either case at such other address and/or marked for such other
person's attention as may be notified by one party to the other party
from time to time for this purpose.
11. Any notice or other communication to be given under this Agreement may
be given by facsimile transmission or by first class prepaid post and
shall be effective at the later of the time of receipt and the normal
business opening time following such receipt.
12. This Agreement may be signed by each party on separate counterparts and
when taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by any such counterpart.
13. This Agreement shall be governed by and construed in all respects in
accordance with English law.
IN WITNESS whereof this Agreement is executed as a Deed the day and year first
above written
Executed as a Deed by MR JOSEPH F BOHAN
/s/ Joseph F. Bohan
- ----------------------------------------
JOSEPH F BOHAN
- ----------------------------------------
Date
- ----------------------------------------
Signature of Witness
- ----------------------------------------
Name of Witness
- ----------------------------------------
Occupation
- ----------------------------------------
Date
Executed as a Deed by
BRADFORD PARTICLE DESIGN PLC
Signed Director
-----------------------------------------
Signed Director/Company Secretary
-----------------------------------------
3.
EXHIBIT 99.8
Dated October 13, 1999
DR BORIS SHEKUNOV
AND
BRADFORD PARTICLE DESIGN PLC
-----------------------------------------------------------
AGREEMENT GRANTING OPTIONS
-----------------------------------------------------------
1.
THIS AGREEMENT is made the thirteenth day of October, 1999.
BETWEEN
(1) DR BORIS SHEKUNOV of 5 Belmont Close, Baildon, Bradford, BD17 5AL ("THE
PARTICIPANT")
(2) BRADFORD PARTICLE DESIGN PLC (Company Number 2898064) whose registered
office is at 69 Listerhills Science Park, Campus Road, Bradford, West
Yorkshire, BD7 1HR ("THE COMPANY")
WHEREAS
(A) The Company has established The Bradford Particle Design plc Unapproved
Employee Share Option Scheme ("THE SCHEME") under which options may be
granted to selected employees of the Company.
(B) The Company wishes to grant an option to the Participant on terms which
are similar to the terms which apply to options granted under the
Scheme (as amended from time to time) to employees of the Company.
IT IS HEREBY AGREED as follows:-
1. In this Agreement any term defined in the Scheme (as amended from time
to time) shall have the same meaning herein and the rules of the Scheme
are hereby incorporated into this Agreement unless varied by this
Agreement.
2. The Company grants to the Participant an option to acquire 1,952 shares
in accordance with the terms of this Agreement.
3. The price at which shares may be acquired by the exercise of an option
is L10 per share.
4. Rule 2(3) of the Scheme (as amended from time to time) shall not apply
to the options granted to the Participant under this Agreement.
5. Rule 5 (Exercise of Options) of the Scheme (as amended from time to
time) shall apply to the options granted to the Participant under this
Agreement with the following modifications:
(a) in sub-rule 5(3) there shall not be any "relevant condition";
(b) in sub-rule 5(4) the words "or he supplies his services to a
Group Member" are inserted after the words "Group Member";
(c) sub-rule 5(5) shall be deleted and replaced with the following
sub-rule:
"If any Participant ceases to be a director or an employee of a
Group Member or ceases to provide his services to a Group
1.
Member (otherwise than by reason of his death), the following
provisions apply in relation to any option granted to him;
(a) if he so ceases by reason of injury or disability the option may
(and subject to sub-rule (4) above must, if at all) be exercised
within the exercise period);
(b) if he so ceases by reason of the Company to which he supplies his
services ceasing to be a Group Member or by reason of the
business or part of the business to which he supplies his
services being transferred to a person who is not a Group Member,
the option may (and subject to sub-rule (4) above must, if at
all) be exercised within the exercise period;
(c) if he so ceases for any other reason the option may be not be
exercised at all unless the Board shall so permit, in which event
it may (and subject to sub-rule (4) above must, if at all) be
exercised to the extent permitted by the Board within the
exercise period;
and in this sub-rule the exercise period is the period which
shall commence on the later of the date of cessation and the
grant of an exit event unexpired 12 months after the
commencement of such period.
6. Rule 6 (Takeover, Reconstruction and Winding-up) of the Scheme (as
amended from time to time) shall apply to the option granted to the
Participant under this Agreement with the following modification:
(a) the cross references to the provisions of Rule 5 of the Scheme
shall be construed as references to Rule 5 of the Scheme as
amended by this Agreement.
7. Rule 7 (Variation of Capital) of the Scheme shall apply to the option
granted to the Participant under this Agreement mutatis mutandis.
8. The Participant waives any and all rights to compensation or damages in
consequences of the Company terminating its agreement with the
Participant for the provision of the Participant's services for any
reason whatsoever in so far as the rights to compensation or damages
arise or may arise from the Participant ceasing to have rights under or
to be entitled to exercise any option as a result of such termination.
9. The Participant acknowledges that:
(a) any options he receives pursuant to this Agreement shall not be
qualifying incentive stock options; and
(b) any securities which he receives pursuant to this Agreement will
be restricted securities (as that term is defined in Rule 144 of
the US Securities Act of 1933).
10. Any notice or other communication required to be given under this
Agreement:
(a) to the Company shall be addressed and delivered to the Company at
its registered office for the time being (marked for the
attention of the Company Secretary);
2.
(b) to the Participant shall be addressed and delivered to the
Participant to either his last known address or to the address of
the place of business at which he performs the whole or
substantially the whole of his services for a Group Member
or in either case at such other address and/or marked for such other
person's attention as may be notified by one party to the other party
from time to time for this purpose.
11. Any notice or other communication to be given under this Agreement may
be given by facsimile transmission or by first class prepaid post and
shall be effective at the later of the time of receipt and the normal
business opening time following such receipt.
12. This Agreement may be signed by each party on separate counterparts and
when taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by any such counterpart.
13. This Agreement shall be governed by and construed in all respects in
accordance with English law.
IN WITNESS whereof this Agreement is executed as a Deed the day and year first
above written
Executed as a Deed by DR BORIS SHEKUNOV )
)
/s/ Dr. Boris Shekunov
Executed as a Deed by
BRADFORD PARTICLE DESIGN PLC
Signed________________________________________Director
Signed________________________________________Director
3.
EXHIBIT 99.9
Dated October 13, 1999
MRS MADGE HOLLOWOOD
AND
BRADFORD PARTICLE DESIGN PLC
-----------------------------------------------------------
AGREEMENT GRANTING OPTIONS
-----------------------------------------------------------
1.
THIS AGREEMENT is made the thirteenth day of October, 1999.
BETWEEN
(1) MRS MADGE HOLLOWOOD of 4 Meadow Close, Harden, Bingley, West Yorkshire,
BD16 1JB ("THE PARTICIPANT")
(2) BRADFORD PARTICLE DESIGN PLC (Company Number 2898064) whose registered
office is at 69 Listerhills Science Park, Campus Road, Bradford, West
Yorkshire, BD7 1HR ("THE COMPANY")
WHEREAS
(A) The Company has established The Bradford Particle Design plc Unapproved
Employee Share Option Scheme ("THE SCHEME") under which options may be
granted to selected employees of the Company.
(B) The Company wishes to grant an option to the Participant on terms which
are similar to the terms which apply to options granted under the
Scheme (as amended from time to time) to employees of the Company.
IT IS HEREBY AGREED as follows:-
1. In this Agreement any term defined in the Scheme (as amended from time
to time) shall have the same meaning herein and the rules of the Scheme
are hereby incorporated into this Agreement unless varied by this
Agreement.
2. The Company grants to the Participant an option to acquire 855 shares
in accordance with the terms of this Agreement.
3. The price at which shares may be acquired by the exercise of an option
is L10 per share.
4. Rule 2(3) of the Scheme (as amended from time to time) shall not apply
to the options granted to the Participant under this Agreement.
5. Rule 5 (Exercise of Options) of the Scheme (as amended from time to
time) shall apply to the options granted to the Participant under this
Agreement with the following modifications:
(a) in sub-rule 5(3) there shall not be any "relevant condition";
(b) in sub-rule 5(4) the words "or he supplies his services to a
Group Member" are inserted after the words "Group Member";
(c) sub-rule 5(5) shall be deleted and replaced with the following
sub-rule:
"If any Participant ceases to be a director or an employee of a
Group Member or ceases to provide his services to a Group
1.
Member (otherwise than by reason of his death), the following
provisions apply in relation to any option granted to him;
(a) if he so ceases by reason of injury or disability the option may
(and subject to sub-rule (4) above must, if at all) be exercised
within the exercise period);
(b) if he so ceases by reason of the Company to which he supplies his
services ceasing to be a Group Member or by reason of the
business or part of the business to which he supplies his
services being transferred to a person who is not a Group Member,
the option may (and subject to sub-rule (4) above must, if at
all) be exercised within the exercise period;
(c) if he so ceases for any other reason the option may be not be
exercised at all unless the Board shall so permit, in which event
it may (and subject to sub-rule (4) above must, if at all) be
exercised to the extent permitted by the Board within the
exercise period;
and in this sub-rule the exercise period is the period which
shall commence on the later of the date of cessation and the
grant of an exit event unexpired 12 months after the commencement
of such period.
6. Rule 6 (Takeover, Reconstruction and Winding-up) of the Scheme (as
amended from time to time) shall apply to the option granted to the
Participant under this Agreement with the following modification:
(a) the cross references to the provisions of Rule 5 of the Scheme
shall be construed as references to Rule 5 of the Scheme as
amended by this Agreement.
7. Rule 7 (Variation of Capital) of the Scheme shall apply to the option
granted to the Participant under this Agreement mutatis mutandis.
8. The Participant waives any and all rights to compensation or damages in
consequences of the Company terminating its agreement with the
Participant for the provision of the Participant's services for any
reason whatsoever in so far as the rights to compensation or damages
arise or may arise from the Participant ceasing to have rights under or
to be entitled to exercise any option as a result of such termination.
9. The Participant acknowledges that:
(a) any options he receives pursuant to this Agreement shall not be
qualifying incentive stock options; and
(b) any securities which he receives pursuant to this Agreement will
be restricted securities (as that term is defined in Rule 144 of
the US Securities Act of 1933).
10. Any notice or other communication required to be given under this
Agreement:
(a) to the Company shall be addressed and delivered to the Company at
its registered office for the time being (marked for the
attention of the Company Secretary);
2.
(b) to the Participant shall be addressed and delivered to the
Participant to either his last known address or to the address of
the place of business at which he performs the whole or
substantially the whole of his services for a Group Member
or in either case at such other address and/or marked for such other
person's attention as may be notified by one party to the other party
from time to time for this purpose.
11. Any notice or other communication to be given under this Agreement may
be given by facsimile transmission or by first class prepaid post and
shall be effective at the later of the time of receipt and the normal
business opening time following such receipt.
12. This Agreement may be signed by each party on separate counterparts and
when taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by any such counterpart.
13. This Agreement shall be governed by and construed in all respects in
accordance with English law.
IN WITNESS whereof this Agreement is executed as a Deed the day and year first
above written
Executed as a Deed by MRS MADGE HOLLOWOOD )
)
/s/ Madge Hollowood
Executed as a Deed by
BRADFORD PARTICLE DESIGN PLC
Signed________________________________________Director
Signed________________________________________Director
3.
EXHIBIT 99.10
INHALE THERAPEUTIC SYSTEMS, INC.
STOCK OPTION ASSUMPTION AND CONVERSION NOTICE
(THE BRADFORD PARTICLE DESIGN PLC UNAPPROVED EMPLOYEE SHARE OPTION SCHEME
- 1999 STOCK OPTION GRANTS)
The undersigned Executive Officer, upon delegation from the Board of Directors
of Inhale Therapeutic Systems, Inc. ("INHALE"), pursuant to the assumption by
Inhale of stock options ("BPD OPTIONS") granted under The Bradford Particle
Design plc Unapproved Employee Share Option Scheme following Inhale's
acquisition of Bradford Particle Design plc, hereby exchanges for Optionholder's
BPD Options an option to purchase the number of shares of Inhale's Common Stock
set forth below ("ROLL-OVER OPTION"). Except as specifically set forth in this
notice, Optionholder's Roll-Over Option is otherwise subject to all of the terms
and conditions as set forth in The Bradford Particle Design plc Unapproved
Employee Share Option Scheme, which is incorporated herein in its entirety.
Optionholder:
-------------------
Optionholder Address:
-------------------
Optionholder National Insurance No.:
-------------------
Date of Grant: , 1999
-----------
Number of Inhale Shares Subject to Option: ( )
---------- -----
Exercise Price Per Share: USD$7.00
Expiration Date: , 2009
-------------
TYPE OF GRANT: Nonstatutory Stock Option
EXERCISE SCHEDULE: From January 8, 2001 through , 2009
----------------
PAYMENT: By one or a combination of the following items:
By cash or check
Pursuant to a Regulation T Program if the
Inhale shares are publicly traded
By delivery of already-owned shares if the
Inhale shares are publicly traded
Please note that you will not be able to exercise your BPD option until
Inhale has filed a Form S-8 with the Securities and Exchange Commission. Once
the Form S-8 has been filed, you will receive more detailed information about
the terms of BPD Options in the form of a question and answer prospectus.
Please note that a Form S-8 is available for the exercise of your Option only
by you or by your family members who have acquired the Option from you
through a gift or a domestic relations order. It is not available for the
exercise of options transferred for value. (This will be explained in more
detail in the question and answer prospectus.) Therefore, the Inhale Board of
Directors will not approve a transfer of your Option unless the Form S-8 will
be available for the exercise of the Option.
INHALE THERAPEUTIC SYSTEMS, INC.
BY:
---------------------------------
SIGNATURE
---------------------------------
EXHIBIT 99.11
INHALE THERAPEUTIC SYSTEMS, INC.
STOCK OPTION ASSUMPTION AND CONVERSION NOTICE
(THE BRADFORD PARTICLE DESIGN PLC APPROVED EMPLOYEE SHARE OPTION SCHEME
- 1999 STOCK OPTION GRANTS)
The undersigned Executive Officer, upon delegation from the Board of Directors
of Inhale Therapeutic Systems, Inc. ("INHALE"), pursuant to the assumption by
Inhale of stock options ("BPD OPTIONS") granted under The Bradford Particle
Design plc Approved Employee Share Option Scheme following Inhale's acquisition
of Bradford Particle Design plc, hereby exchanges for Optionholder's BPD Options
an option to purchase the number of shares of Inhale's Common Stock set forth
below ("ROLL-OVER OPTION"). Except as specifically set forth in this notice,
Optionholder's Roll-Over Option is otherwise subject to all of the terms and
conditions as set forth in The Bradford Particle Design plc Approved Employee
Share Option Scheme, which is incorporated herein in its entirety.(1)
Optionholder: ___________________
Optionholder Address: ___________________
Optionholder National Insurance No.: ___________________
Date of Grant: ____________, 1999
Number of Inhale Shares Subject to Option: ___________ (_______)
Exercise Price Per Share: USD$7.00
Expiration Date: ____________ , 2009_
TYPE OF GRANT: Nonstatutory Stock Option
EXERCISE SCHEDULE: From January 8, 2001 through _______________________,2009
PAYMENT: By one or a combination of the following items:
By cash or check
Pursuant to a Regulation T Program if the
Inhale shares are publicly traded
Executed as a Deed by:
INHALE THERAPEUTIC SYSTEMS, INC.
BY: _________________________________
SIGNATURE
_________________________________
____________________
(1) In the event of any conflict, the rules of the Bradford Particle Design plc
Approved Employee Share Option Scheme and Schedule 9 of the Income and Corporate
Taxes Act 1988 of the United Kingdom shall take precedence over the terms of
this document.
EXHIBIT 99.12
INHALE THERAPEUTIC SYSTEMS, INC.
STOCK OPTION ASSUMPTION AND CONVERSION NOTICE
(THE BRADFORD PARTICLE DESIGN PLC UNAPPROVED EMPLOYEE SHARE OPTION SCHEME
(SCHEDULE 1)
- 2000 STOCK OPTION GRANTS)
The undersigned Executive Officer, upon delegation from the Board of Directors
of Inhale Therapeutic Systems, Inc. ("INHALE"), pursuant to the assumption by
Inhale of stock options ("BPD OPTIONS") granted under The Bradford Particle
Design plc Unapproved Employee Share Option Scheme following Inhale's
acquisition of Bradford Particle Design plc, hereby exchanges for Optionholder's
BPD Options an option to purchase the number of shares of Inhale's Common Stock
set forth below ("ROLL-OVER OPTION"). Except as specifically set forth in this
notice, Optionholder's Roll-Over Option is otherwise subject to all of the terms
and conditions as set forth in The Bradford Particle Design plc Unapproved
Employee Share Option Scheme (as amended by Schedule 1 to that Scheme), which is
incorporated herein in its entirety.
Optionholder: ___________________
Optionholder Address: ___________________
Optionholder National Insurance No.: ___________________
Date of Grant: ____________, 2000
Number of Inhale Shares Subject to Option: ___________ (_______)
Exercise Price Per Share: USD$7.00
Expiration Date: ____________ , 2010
TYPE OF GRANT: Nonstatutory Stock Option
EXERCISE SCHEDULE: From January 8, 2001 through _________________, 2010
PAYMENT: By one or a combination of the following items:
By cash or check
Pursuant to a Regulation T Program if the
Inhale shares are publicly traded
By delivery of already-owned shares if the
Inhale shares are publicly traded
Please note that you will not be able to exercise your BPD option until
Inhale has filed a Form S-8 with the Securities and Exchange Commission. Once
the Form S-8 has been filed, you will receive more detailed information about
the terms of BPD Options in the form of a question and answer prospectus.
Please note that a Form S-8 is available for the exercise of your Option only
by you or by your family members who have acquired the Option from you
through a gift or a domestic relations order. It is not available for the
exercise of options transferred for value. (This will be explained in more
detail in the question and answer prospectus.) Therefore, the Inhale Board of
Directors will not approve a transfer of your Option unless the Form S-8 will
be available for the exercise of the Option.
INHALE THERAPEUTIC SYSTEMS, INC.
BY: _________________________________
SIGNATURE
_________________________________
EXHIBIT 99.13
INHALE THERAPEUTIC SYSTEMS, INC.
STOCK OPTION ASSUMPTION AND CONVERSION NOTICE
(THE BOHAN 1999 UNAPPROVED AGREEMENT)
The undersigned Executive Officer, upon delegation from the Board of Directors
of Inhale Therapeutic Systems, Inc. ("INHALE"), pursuant to the assumption by
Inhale of stock options ("BPD OPTIONS") granted under the Agreement Granting
Options dated November 5, 1999 between Bradford Particle Design plc and Joseph
Bohan (the "BOHAN 1999 UNAPPROVED AGREEMENT") following Inhale's acquisition of
Bradford Particle Design plc, hereby converts Optionholder's BPD Options to an
option to purchase the number of shares of Inhale's Common Stock set forth below
("ROLL-OVER OPTION"). Except as specifically set forth in this notice,
Optionholder's Roll-Over Option is otherwise subject to all of the terms and
conditions as set forth in the Bohan 1999 Unapproved Agreement, which is
incorporated herein in its entirety.
Optionholder: JOSEPH BOHAN
Optionholder Address: c/o Haz LLC, 123 Blackberry Lane, Amherst, MA 01002 U.S.A.
Social Security Number: ###-##-####
Date of Grant: November 11, 1999
Number of Inhale Shares Subject to Option: Four Thousand Two Hundred Seventy Six (4,276)
Exercise Price Per Share: USD$7.00
Expiration Date: November 11, 2009
TYPE OF GRANT: Nonstatutory Stock Option
EXERCISE SCHEDULE: From January 8, 2001 through November 10, 2009
PAYMENT: By one or a combination of the following items:
By cash or check
Pursuant to a Regulation T Program if the
Inhale shares are publicly traded
By delivery of already-owned shares if the
Inhale shares are publicly traded
Please note that you will not be able to exercise your BPD Option until Inhale
has filed a Form S-8 with the Securities Exchange Commission. Once the Form S-8
has been filed, you will receive more detailed information about the terms of
BPD Options in the form of a question and answer prospectus. Please note that a
Form S-8 is available for the exercise of your Option only by you or by your
family members who have acquired the Option from you through a gift or a
domestic relations order. It is not available for the exercise of options
transferred for value. (This will be explained in more detail in the question
and answer prospectus.) Therefore, the Inhale Board of Directors will not
approve a transfer of your Option unless the Form S-8 will be available for the
exercise of the Option.
INHALE THERAPEUTIC SYSTEMS, INC.
BY: _________________________________
SIGNATURE
_________________________________
EXHIBIT 99.14
INHALE THERAPEUTIC SYSTEMS, INC.
STOCK OPTION ASSUMPTION AND CONVERSION NOTICE
(THE BOHAN 2000 UNAPPROVED AGREEMENT)
The undersigned Executive Officer, upon delegation from the Board of Directors
of Inhale Therapeutic Systems, Inc. ("INHALE"), pursuant to the assumption by
Inhale of stock options ("BPD OPTIONS") granted under the Agreement Granting
Options dated October 27, 2000 between Bradford Particle Design plc and Joseph
Bohan (the "BOHAN 2000 UNAPPROVED AGREEMENT") following Inhale's acquisition of
Bradford Particle Design plc, hereby converts Optionholder's BPD Options to an
option to purchase the number of shares of Inhale's Common Stock set forth below
("ROLL-OVER OPTION"). Except as specifically set forth in this notice,
Optionholder's Roll-Over Option is otherwise subject to all of the terms and
conditions as set forth in the Bohan 2000 Unapproved Agreement, which is
incorporated herein in its entirety.
Optionholder: JOSEPH BOHAN
Optionholder Address: c/o Haz LLC, 123 Blackberry Lane, Amherst, MA 01002 U.S.A.
Social Security Number: ###-##-####
Date of Grant: October 27, 2000
Number of Inhale Shares Subject to Option: Five Thousand Three Hundred Forty Five (5,345)
Exercise Price Per Share: USD$12.40
Expiration Date: October 27, 2010
TYPE OF GRANT: Nonstatutory Stock Option
EXERCISE SCHEDULE: From January 8, 2001 through October 26, 2010
PAYMENT: By one or a combination of the following items:
By cash or check
Pursuant to a Regulation T Program if the
Inhale shares are publicly traded
By delivery of already-owned shares if the
Inhale shares are publicly traded
Please note that you will not be able to exercise your BPD Option until Inhale
has filed a Form S-8 with the Securities Exchange Commission. Once the Form S-8
has been filed, you will receive more detailed information about the terms of
BPD Options in the form of a question and answer prospectus. Please note that a
Form S-8 is available for the exercise of your Option only by you or by your
family members who have acquired the Option from you through a gift or a
domestic relations order. It is not available for the exercise of options
transferred for value. (This will be explained in more detail in the question
and answer prospectus.) Therefore, the Inhale Board of Directors will not
approve a transfer of your Option unless the Form S-8 will be available for the
exercise of the Option.
INHALE THERAPEUTIC SYSTEMS, INC.
BY:
-----------------------------
SIGNATURE
-----------------------------
