EXHIBIT 10.33
RULES
OF THE
MILLENNIUM PHARMACEUTICALS, INC
SAYE PLAN
(Established by the Company on 21 September 2001
and approved by the Inland Revenue
under Schedule 9 to the Income
and Corporation Taxes Act 1988
on October 16, 2001]
under ref SRS 2690 )
ERNST & YOUNG LLP
ROLLS HOUSE
ROLLS BUILDINGS
FETTER LANE
LONDON EC4A 1NH
TEL: 020 7951 2000
FAX: 020 7951 4001
FINAL VERSION - OCTOBER 2001
CONTENTS
RULE
1. Definitions and interpretation
2. Invitations to apply for Options
3. Scaling down
4. Grant of Options
5. Plan limits
6. Rights of exercise and lapse of Options
7. Exercise of Options
8. Takeovers and liquidations
9. Exchange of Options on a takeover
10. Variation of share capital
11. Administration
12. Amendments
13. General
MILLENNIUM PHARMACEUTICALS, INC
SAYE PLAN
1. DEFINITIONS AND INTERPRETATION
In this Plan, the following words and expressions shall, where the context
so permits, have the following meanings:
"ASSOCIATED COMPANY" has the meaning that the expression bears in
Paragraph 23 of Schedule 9 by virtue of
section 187(2) of the Taxes Act;
"AUDITORS" means the auditors for the time being of the
Company;
"BONUS" means any sum payable by way of terminal
bonus under a Savings Contract being the
additional payment made by the nominated
Savings Authority when repaying contributions
under a Savings Contract;
"BONUS DATE" means the earliest date on which the
relevant Bonus is payable;
"COMMITTEE" means the Board of Directors for the time
being of the Company or a committee thereof
duly designated for the administration of
this Plan (or any person authorised by that
committee);
"THE COMPANY" means Millennium Pharmaceuticals, Inc whose
principal office is at 75 Sidney Street,
Cambridge, Massachusetts, 02139, USA;
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"CONTROL" has the meaning given by section 840 of the
Taxes Act;
"DATE-OF-GRANT" means the date on which an Option is granted;
"ELIGIBLE-EMPLOYEE" means:
(a) any person who is a director required to
devote to his duties not less than 25
hours per week (excluding meal breaks),
or any employee (other than one who is a
director), of any Participating Company
who:
(i) has such qualifying period (if any)
of continuous service (being a
period commencing not earlier than
five years prior to the Date of
Grant) as the Committee may in its
absolute discretion and from time
to time determine; and
(ii) is chargeable to tax in respect of
his office or employment under Case
I of Schedule E; and
(b) any other director or employee of any
Participating Company whom the Committee
may in their absolute discretion and
from time to time select,
who is not precluded from participating in
this Plan by paragraph 8 of Schedule 9
(material interest in a close company within
the preceding 12 months);
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"EXERCISE PRICE" means the price (in Pounds Sterling) at which
each share of Stock subject to an Option may
be acquired on the exercise of that Option,
being (subject to Rule 10) not manifestly
less than eighty five per cent (85%) of the
Market Value of a share of Stock (or such
other percentage as shall from time to time
be specified in paragraph 25 of Schedule 9)
on the business day preceding the day on
which invitations are issued;
"GMT" means Greenwich Mean Time;
"GROUP COMPANY" means the Company, any company under the
Control of the Company, and any other
Associated Company;
"MARKET VALUE" means on any day:
(a) if the Stock is listed on the New York
Stock Exchange, the closing price of the
Stock on that exchange; or
(b) if the Stock is not listed on the New
York Stock Exchange, the market value as
determined in accordance with Part VIII
of the Taxation of Chargeable Gains Act
1992 and agreed in advance with the
Inland Revenue Shares Valuation
Division;
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converted into Pounds Sterling using the
prevailing exchange rate on that date as
determined from the Wall Street Journal,
or such other source as the Committee
may in its absolute discretion and from
time to time determine, or any other
exchange rate as shall be agreed with
the Inland Revenue prior to the Date of
Grant.
"MAXIMUM-CONTRIBUTION" means the maximum aggregate Monthly
Contribution which a Participant may make
under all Savings Contracts linked to options
granted to him under this Plan or any other
savings-related share option plan approved by
the Inland Revenue under Schedule 9, being
the lesser of:
(a) (pound)250 per month (or such other
maximum amount as shall be specified in
paragraph 24(2)(a) of Schedule 9); and
(b) such other maximum contribution as may
be determined from time to time by the
Committee which need not be the same in
relation to all Eligible Employees
provided that it does not infringe the
requirements of paragraphs 26(1) and (2)
of Schedule 9 (participation on similar
terms);
"MONTHLY CONTRIBUTION" means the monthly contribution agreed to be
paid by an Optionholder under his Savings
Contract;
"OPTION" means a right to acquire Stock pursuant to
this Plan;
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"OPTION HOLDER" means an Eligible Employee to whom an Option
has been granted under this Plan;
"PARTICIPATING COMPANY" means the Company and any company of which
the Company has Control but excluding any
company which is for the time being specified
by the Committee as not being a Participating
Company;
"THIS PLAN" means the Millennium Pharmaceuticals, Inc
SAYE Plan, as amended from time to time;
"SAVINGS AUTHORITY" means the building society or bank recognised
by the Committee from time to time for the
purpose of receiving Monthly Contributions
under Savings Contracts;
"SAVINGS CONTRACT" means a contract under a certified
contractual savings scheme (within the
meaning of section 326 of the Taxes Act)
approved by the Inland Revenue for the
purpose of Schedule 9;
"SCHEDULE 9" means Schedule 9 to the Taxes Act;
"SPECIFIED AGE" means the age of 60;
"STOCK" means the common stock of the Company which
satisfies the requirements of paragraphs 10
to 14 of Schedule 9;
"TAXES ACT" means the Income and Corporation Taxes Act
1988.
References to any statutory provision are to that provision as amended or
re-enacted from time to time, and, unless the context otherwise requires,
words in the singular shall include the plural and vice versa and words
importing the masculine shall include the feminine and vice versa.
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2. INVITATIONS TO APPLY FOR OPTIONS
2.1 The Committee may invite all Eligible Employees to apply for the grant
of Options on such dates as it may from time to time resolve after the
approval of this Plan or any amendment hereto by the Inland Revenue
under Schedule 9.
2.2 Such invitations shall be made to all Eligible Employees and shall
include details of the following matters which shall be determined by
the Committee:
(a) the Exercise Price or the means by which it will be notified to
Eligible Employees;
(b) the latest date by which applications must be received, being
neither earlier than 14 days nor later than 28 days after the
date of the invitations; and
(c) the Maximum Contribution.
2.3 Each invitation shall be accompanied by:
(a) a proposal form for a Savings Contract; and
(b) an application form.
2.4 An application form shall be in such form as the Committee may from
time to time prescribe (subject to the prior approval of the Inland
Revenue) save that it must provide for the applicant to state:
(a) the Monthly Contribution (being a multiple of(pound)1 and not
less than(pound)5) which he wishes to make under the related
Savings Contract; and
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(b) that his proposed Monthly Contribution (when taken together with
any Monthly Contribution he makes under any other Savings
Contract linked to an Option granted to him under this Plan or
any other savings-related share option plan approved by the
Inland Revenue under Schedule 9) will not exceed (pound)250 per
month (or such other maximum amount as shall be specified in
paragraph 24(2)(a) of Schedule 9).
2.5 Each application shall provide that, in the event of scaling down in
accordance with Rule 3, the Committee is authorised by the applicant
to modify his application to reflect such scaling down.
2.6 Each application shall be deemed to be for an Option over such number
of shares of Stock as can be acquired at the Exercise Price with the
expected repayment under the related Savings Contract at the Bonus
Date.
3. SCALING DOWN
3.1 To the extent that valid applications are received in excess of any
maximum number of shares of Stock which may be determined by the
Committee pursuant to Rule 5, the Committee shall scale down
applications in the same manner in order to eliminate the excess by:
(a) imposing a lower Maximum Contribution in respect of the offer;
and/or
(b) reducing pro-rata the proposed Monthly Contributions in excess
of(pound)5; and
(c) so far as necessary, selecting by lot.
3.2 Where applications are scaled down in accordance with Rule 3.1 all
relevant applications shall be deemed to have been amended or
withdrawn, as the case may be.
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4. GRANT OF OPTIONS
4.1 Options shall be granted as soon as the Committee deems practicable
following the date stated on the relevant invitation as being the date
of its expiry in accordance with Rule 2.2 (b) provided that the Date
of Grant shall not in any circumstances be more than 30 days (or 42
days in the event that applications are scaled down under Rule 3)
after the day by reference to which the Exercise Price was fixed.
4.2 No Option shall be granted to a person unless at the Date of Grant he
is an Eligible Employee.
4.3 As soon as is practicable after having granted an Option to an
Eligible Employee the Committee shall issue to him, or procure the
issue to him of, an option certificate. The option certificate shall
be in such form determined by the Committee from time to time (subject
to it being acceptable to the Inland Revenue) and shall state:
(a) the Date of Grant of the Option;
(b) the number and class of Stock over which the Option is granted;
and
(c) the Exercise Price payable for each share of Stock subject to the
Option.
4.4 Subject to the right of an Optionholder's personal representatives to
exercise an Option as provided in Rule 6.4, every Option shall be
personal to the Eligible Employee to whom it is granted and shall not
be capable of being transferred, assigned or charged.
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5. PLAN LIMITS
In respect of each grant of Options under the Plan, the Committee may in
its discretion place a limit on the number of shares of Stock to be made
available under this Plan on that occasion.
6. RIGHTS OF EXERCISE AND LAPSE OF OPTIONS
6.1 Save as provided in Rules 6.4 (death), 6.5 (good leavers), 6.8
(reaching the Specified Age) and 8 (takeovers etc), an Option may be
exercised only during the six-month period commencing with the Bonus
Date under the related Savings Contract.
6.2 Save as provided in Rules 6.4, 6.5 and 6.6, an Optionholder may only
exercise an Option while he is a director or employee of a Group
Company.
6.3 No Option may be exercised by an Optionholder at any time when he is,
or by the personal representatives of an Optionholder who at the date
of his death was, prohibited from such exercise by virtue of the
provisions of paragraph 8 of Schedule 9 (material interest in a close
company within the preceding 12 months).
6.4 Subject to Rule 6.3, an Option may be exercised by the personal
representatives of a deceased Optionholder:
(a) during the period of one year following the date of the
Optionholder's death if such death occurs before the Bonus Date;
or
(b) during the period of one year following the Bonus Date if the
Optionholder's death occurs within the period of six months after
the Bonus Date.
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6.5 Subject to Rule 6.6, if an Optionholder ceases to hold any office or
employment with a Participating Company on account of:
(a) injury or disability (evidenced to the satisfaction of the
Committee); or
(b) redundancy (within the meaning of the Employment Rights Act
1996); or
(c) retirement on reaching the Specified Age or any other age at
which he is bound to retire in accordance with the terms of his
contract of employment; or
(d) the transfer of the undertaking or part-undertaking in which the
Optionholder is employed to a person other than a Group Company;
or
(e) the Company by which the Optionholder is employed ceasing to be
under the Control of the Company
the Option may be exercised by five o'clock in the afternoon
(5.00pm) GMT on the day the period of six months after the date
of such cessation expires.
6.6 An Optionholder shall not be treated as having ceased to hold any
office or employment with a Participating Company for the purposes of
this Rule 6 if he continues to hold any office or employment with a
Group Company.
6.7 An Option shall lapse on the occurrence of the earliest of the
following:
(a) subject to Rule 6.7(b) below, at five o'clock in the afternoon
(5.00pm) GMT on the day the period of six months after the Bonus
Date expires; or
(b) at five o'clock in the afternoon (5.00pm) GMT on the day any of
the applicable periods specified in Rules 6.4 (exercise by
personal representatives) and 6.5 (good leavers) expire but if an
Optionholder dies
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while time is running under Rule 6.5, the Option shall not lapse
until five o'clock in the afternoon (5.00pm) GMT on the day the
relevant period in Rule 6.4(a) or (b) expires;
(c) subject to Rule 9 (exchange of options on a takeover), at five
o'clock in the afternoon (5.00pm) GMT on the day the applicable
periods in Rules 8.1, 8.2, 8.3 and 8.4 (takeovers etc) expire;
(d) subject to Rule 6.6 (retaining an office or employment with an
associated company etc), at five o'clock in the afternoon
(5.00pm) GMT on the day on which an Optionholder ceases to be a
director or employee of a Participating Company for any reason
other than his death or those specified in Rule 6.5 (good
leavers); and
(e) at five o'clock in the afternoon (5.00pm) GMT on the day on which
the Optionholder becomes bankrupt or does or omits to do anything
as a result of which he is deprived of the legal or beneficial
ownership of the Option.
6.8 If an Optionholder continues to be employed by a Participating Company
after the date on which he reaches the Specified Age, he may exercise
an Option by five o'clock in the afternoon (5.00pm) GMT on the day on
which the period of six months following that date expires.
7. EXERCISE OF OPTIONS
7.1 An Option may only be exercised with monies not exceeding the amount
of repayment (including any Bonus or interest) made under the related
Savings Contract. For this purpose, repayment under the Savings
Contract shall exclude the repayment of any Monthly Contribution the
due date for payment of which falls more than one month after the date
on which repayment is made.
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7.2 Save as otherwise provided in this Plan, an Option shall be
exercisable in whole or in part by notice in writing (in the form
prescribed by the Committee) given by the Optionholder (or his
personal representatives) to the Company. If exercised in part, the
Option shall lapse as to the unexercised part. The notice of exercise
of the Option shall be accompanied by the relevant Option Certificate
and either a remittance in cleared funds for the aggregate of the
Exercise Prices payable or authority for the Savings Authority to pay
such amount to the Company.
7.3 Within 30 days after the Option Exercise the Committee shall allot or
procure the transfer of the Stock in respect of which the Option has
been validly exercised and shall issue a definitive certificate in
respect of the Stock allotted or transferred unless the Committee
considers that such allotment or transfer would not be lawful or
appropriate in the relevant jurisdiction.
7.4 Stock allotted under this Plan shall rank pari passu in all respects
with the shares of Stock of the same class for the time being in issue
save as regards any rights attaching to such Stock by reference to a
record date prior to the date of allotment and, in the case of a
transfer of existing Stock, the transferee shall not acquire any
rights attaching to such Stock by reference to a record date prior to
the date of such transfer.
7.5 If and so long as the Stock is traded on NASDAQ or listed on any other
stock exchange, the Company shall apply, or procure the application,
for the formal admittance of any Stock allotted under this Plan to
NASDAQ or to that other exchange.
8. TAKEOVERS AND LIQUIDATIONS
8.1 If any person obtains Control of the Company as a result of making:
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(a) 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
(b) a general offer to acquire all the stock in the Company which is
of the same class as the Stock,
any Option may be exercised immediately before and conditionally
upon such change of Control or by five o'clock in the afternoon
(5.00pm) GMT on the day the period of six months after that date
expires. For the purposes of this Rule 8.1 a person shall be
deemed to have obtained Control of the Company if he and others
acting in concert with him have together obtained Control of it.
8.2 If, under section 425 of the Companies Act 1985 (or closely comparable
overseas legislation acceptable to the Inland Revenue), 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, any Option may
be exercised immediately prior to and conditionally upon the Court
sanctioning such compromise or arrangement or by five o'clock in the
afternoon (5.00pm) GMT on the day the period of six months after the
date of such compromise or arrangement expires.
8.3 If any person becomes bound or entitled to acquire stock in the
Company under sections 428 to 430 of the Companies Act 1985 (or
closely comparable overseas legislation acceptable to the Inland
Revenue) any subsisting Option may be exercised at any time when that
person remains so bound or entitled.
8.4 If the Company passes a resolution for voluntary winding up, any
Option may be exercised by five o'clock in the afternoon (5.00pm) GMT
on the day the period of six months after the passing of the
resolution expires.
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8.5 Notwithstanding any other provisions of this Plan, if at Bonus Date
the Optionholder holds an office or employment in a company which is
not a Participating Company but which is a company under the Control
of the Company or an Associated Company, he may exercise his option by
five o'clock in the afternoon (5.00pm) GMT on the day the period of 6
months after the Bonus Date expires.
9. EXCHANGE OF OPTIONS ON A TAKEOVER
9.1 Notwithstanding the provisions of Rule 8, if any company ("the
Acquiring Company") obtains Control of the Company or becomes bound or
entitled to acquire stock in the Company within any of the sets of
circumstances specified in Rules 8.1, 8.2 and 8.3, any Optionholder
may at any time within the periods specified in those Rules, by
agreement with the Acquiring Company, release his Option ("the Old
Option") in consideration of the grant to him of a new option ("the
New Option") which is equivalent to the Old Option (by virtue of
satisfying the requirements of paragraph 15(3) of Schedule 9) but
relates to shares in a different company (whether the Acquiring
Company itself or some other company falling within paragraph (b) or
(c) of paragraph 10 of Schedule 9).
9.2 Where any New Options are granted pursuant to Rule 9.1 they shall be
regarded for the purposes of the subsequent application of the
provisions of this Plan as having been granted at the time when the
corresponding Old Options were granted and, with effect from the date
on which the New Options are granted:
(a) save for the definitions of "Participating Company" and "Group
Company" in Rule 1, references to "the Company" (including the
definition in Rule 1) shall be construed as being references to
the
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Acquiring Company or such other company to whose stock the New
Option relate; and
(b) references to "Stock" (including the definition in Rule 1) shall
be construed as being references to shares in the Acquiring
Company or shares in such other company to which the New Options
relate.
10. VARIATION OF SHARE CAPITAL
10.1 In the event of any capitalisation issue, rights issue, consolidation,
subdivision, reduction or other variation of the share capital of the
Company:
(a) the number of shares of Stock comprised in an Option;
(b) their Exercise Price;
(c) where an Option has been exercised but no Stock has been allotted
or transferred in satisfaction of such exercise, the number of
shares of Stock to be so allotted or transferred and their
Exercise Price;
may, subject to the prior approval of the Inland Revenue, be
varied in such manner as the Committee shall determine and (save
in the event of a capitalisation) the Auditors (acting as experts
and not arbitrators) shall confirm in writing to be in their
opinion fair and reasonable.
10.2 The Committee may take such steps as they consider necessary to notify
Optionholders of any adjustment made under this Rule 10 and to call
in, cancel, endorse, issue or re-issue any option certificate
consequent upon such adjustment.
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11. ADMINISTRATION
11.1 The Committee shall have power from time to time to make and vary such
regulations (not being inconsistent with this Plan) for the
implementation and administration of this Plan as they think fit.
11.2 The decision of the Committee shall be final and binding in all
matters relating to this Plan (other than in the case of matters to be
determined or confirmed by the Auditors in accordance with this Plan).
11.3 The costs of establishing and administering this Plan shall be borne
by the Company.
11.4 The Company may, but shall not be obliged to, provide Eligible
Employees or Optionholders with copies of any notices circulars or
other documents sent to shareholders of the Company.
12. AMENDMENTS
12.1 Prior to approval of this Plan by the Inland Revenue under Schedule 9
the Committee may alter the Rules of this Plan as may be necessary to
obtain such approval.
12.2 After the date on which this Plan is approved by the Inland Revenue
under Schedule 9, the Rules may be amended in any respect by
resolution of the Committee provided that no amendment shall take
effect which would cause this Plan (or any or all of the Options
granted under it) to cease to be approved by the Inland Revenue and no
amendment shall have effect until it has been approved by the Inland
Revenue.
12.3 Written notice of any amendment to this Plan shall be given to all
Optionholders affected thereby.
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13. GENERAL
13.1 This Plan shall commence upon the date of its approval by the Inland
Revenue and shall (unless previously terminated by a resolution of the
Committee or a resolution of the Company in General Meeting) terminate
at five o'clock in the afternoon (5.00pm) GMT on the day the period of
ten years from such date expires. On termination no further Options
may be granted but such termination shall be without prejudice to any
accrued rights in existence at the date thereof.
13.2 The Company will at all times keep available sufficient authorised and
unissued Stock, or shall ensure that sufficient Stock will be
available (whether as treasury Stock or otherwise), to satisfy the
exercise to the full extent still possible of all subsisting Options,
taking account of any other obligations of the Company to issue Stock.
13.3 Notwithstanding any other provision of this Plan:
(a) this Plan shall not form part of any contract of employment
between any Participating Company and any employee of any such
company and the rights and obligations of any individual under
the terms of his office or employment with any Group Company
shall not be affected by his participation in this Plan or any
right which he may have to participate in it and this Plan shall
afford such an individual no additional rights to compensation or
damages in consequence of the termination of such office or
employment for any reason whatsoever;
(b) no Optionholder shall be entitled to any compensation or damages
for any loss or potential loss which he may suffer by reason of
being unable to exercise an Option in consequence of the loss or
termination of his office or employment with any Group Company
for any reason whatsoever;
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(c) this Plan shall not confer on any person any legal or equitable
rights (other than those constituting the Options themselves)
against any Group Company directly or indirectly, or give rise to
any cause of action at law or in equity against any Group
Company.
13.4 Save as otherwise provided in this Plan any notice or communication to
be given by the Company to any Eligible Employee or Optionholder may
be:
(a) delivered by electronic mail bearing the Eligible Employee's or
Optionholder's electronic signature and it shall be deemed to
have been received upon electronic confirmation of such delivery;
or
(b) personally delivered or sent by ordinary post to his last known
address and where a notice or communication is sent by post it
shall be deemed to have been received 48 hours after the same was
put into the post properly addressed and stamped.
Stock certificates and other communications sent by post will be
sent at the risk of the Eligible Employee or Optionholder
concerned and the Company shall have no liability whatsoever to
any such person in respect of any notification, document, stock
certificate or other communication so given, sent or made.
13.5 Any notice to be given to the Company shall be delivered or sent to
the Company at its registered office and shall be effective upon
receipt.
13.6 This Plan and all Options granted under it shall be governed by and
construed in accordance with English law.
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