UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): May 15, 2001
Shire Pharmaceuticals Group plc
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(Exact name of registrant as specified in its charter)
England and Wales
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(State or other jurisdiction of incorporation)
0-29630 N/A
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(Commission File Number) (IRS Employer Identification No.)
Hampshire International Business Park, Chineham, Basingstoke,
Hampshire RG24 8EP England
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 44 1256 894 000
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(Former name or former address, if changed since last report)
Item 7. Financial Statements and Exhibits
99.1 Description of Shire Share Capital
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: May 15, 2001 SHIRE PHARMACEUTICALS GROUP PLC
By: /s/ Rolf Stahel
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Name: Rolf Stahel
Title: Chief Executive
EXHIBIT INDEX
Number Description
99.1 Description of Shire Share Capital
Exhibit 99.1
DESCRIPTION OF SHIRE SHARE CAPITAL
The following sections include information concerning the ordinary shares
of Shire Pharmaceuticals Group plc, a public limited liability company organized
under the laws of England and Wales ("Shire"), based on English law and a
summary of material provisions of the Memorandum and Articles of Association of
Shire. This summary does not purport to be complete and is qualified in its
entirety by reference to the full Memorandum and Articles of Association of
Shire.
General
All of Shire's issued ordinary shares are fully paid or credited as fully
paid and nonassessable. Certificates representing the ordinary shares are issued
in registered form, although a directors' resolution passed on September 26,
1996 authorized the transfer of shares in Shire by means of CREST, a paperless
settlement system enabling securities to be evidenced otherwise than by a
certificate and transferred otherwise than by a written instrument. So long as
this directors' resolution is in force, the Articles of Association in relation
to the ordinary shares will not apply to any uncertificated ordinary shares to
the extent that the Articles of Association are inconsistent with the holding of
ordinary shares in uncertificated form, the transfer of title to any ordinary
shares by means of the CREST system and any provisions of the regulations
relating to CREST. Under English law, shareholders who are not residents of the
U.K. may hold, vote and transfer their shares in the same manner as U.K.
residents but the Articles provide that, where a shareholder has a registered
address outside the U.K., the shareholder is not entitled to receive any notice
from Shire unless that shareholder has specified an address within the U.K. at
which these notices may be served.
Share Capital
Shire was incorporated with an authorized share capital of (pound)50,000
divided into 50,000 ordinary shares of (pound)1 each, of which two shares were
taken by the subscribers to the Memorandum of Association.
By ordinary resolution passed on July 7, 2000, the directors were generally
and unconditionally authorized to exercise all powers of Shire to allot relevant
securities, within the meaning of Section 80 of the Companies Act 1985, up to an
aggregate nominal amount of (pound)4,197,625.90. This authority expires on the
fifth anniversary of the date of the passing of the resolution. However, Shire
may make offers or agreements before the expiration, which would or might
require relevant securities to be allotted after the expiration and the
directors
may allot relevant securities in pursuance of the offers or agreements as if the
authority conferred by that resolution had not expired.
By ordinary resolution passed on March 29, 2001, the directors were
generally and unconditionally authorized to exercise all powers of Shire to
allot relevant securities, within the meaning of Section 80 of the Companies Act
1985, up to an aggregate nominal amount of (pound)17,221,000. This authority
expires 15 months after the date of the passing of the resolution or the
conclusion of the next annual general meeting of Shire, whichever is earlier.
However, Shire may make offers or agreements before the expiration, which would
or might require relevant securities to be allotted after the expiration and the
directors may allot relevant securities in pursuance of the offers or agreements
as if the authority conferred by that resolution had not expired.
By special resolution passed on March 29, 2001, the directors were
empowered under Section 95 of the Companies Act 1985 to allot equity securities,
as defined in Section 94(2) of the Companies Act 1985, under the authority
referred to in the paragraph above, as if Section 89(1) of the Companies Act
1985, relating to shareholders' rights of preemption, did not apply to any of
these allotments, provided that this power is limited to:
o the allotment of equity securities where such securities have been
offered (whether by way of a rights issue, open offer or other
pre-emptive offer) to holders of ordinary shares in proportion (as
nearly as may be) to their existing holdings of ordinary shares but
subject to the directors having a right to make such exclusions or
other arrangements in connection with such offering as they may deem
necessary or expedient:
1) to deal with equity securities representing fractional
entitlements;
2) to deal with ordinary shares represented by depository receipts;
and
3) to deal with legal or practical problems under the laws of, or
the requirements of any recognized regulatory body or any stock
exchange in, any territory; and
o allotments of equity securities for cash otherwise than pursuant to
the preceding bullet point up to an aggregate nominal amount of
approximately (pound)1,279,868.
This power expires on the fifth anniversary of the date of the resolution,
except that Shire may before this expiration make an offer or agreement that
would or might require
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equity securities to be allotted after the expiration and the directors may
allot equity securities under the offer or agreement as if that power had not
expired.
The provisions of Section 89(1) of the Companies Act 1985 confer on
shareholders rights of pre-emption in respect of the allotment of equity
securities which are, or are to be, paid in cash, other than by way of allotment
to employees under an employees' share scheme as defined in Section 743 of the
Companies Act 1985. This section applies to the authorized but unissued share
capital of Shire, to the extent not disapplied in accordance with Section 95 of
the Companies Act 1985.
Dividends
Subject to the Companies Act 1985 and other applicable law and the Articles
of Association, Shire may by ordinary resolution from time to time declare
dividends to be paid to shareholders according to their rights and interests in
the profits available for distribution, but no dividend shall be declared in
excess of the amount recommended by the board of directors. Except insofar as
the rights attaching to, or the terms of issue of, any share in Shire otherwise
provide, all dividends shall be apportioned and paid proportionately according
to the amounts paid on the shares during any portion or portions of the period
in respect of which the dividend is paid, but no amount paid up on a share in
advance of a call shall be treated as paid up on the share for this purpose. The
board of directors may from time to time and subject to the Companies Act 1985
and other applicable law also pay to the shareholders an amount of interim
dividends that the board of directors considers to be justified by the profits
of Shire available for distribution. The Board of Directors of Shire may, with
the prior authority of an ordinary resolution of Shire, direct that payment of
any dividend may be satisfied wholly or in part by the distribution of specific
assets and, in particular, of paid up shares or debentures of another company.
The board may, if authorized by an ordinary resolution of Shire, allot to those
holders of a particular class of shares who have elected to receive further
shares of that class or ordinary shares instead of cash in respect of all or
part of a dividend or dividends specified by the resolution. The value of the
shares allotted will be calculated by reference to the average of the middle
market quotations for a fully-paid share of Shire of that class derived from the
Daily Official List of the London Stock Exchange for the five business days
commencing on the day the ordinary shares are first quoted "ex" the relevant
dividend. Final dividends are recommended by the board of directors following
the end of the fiscal year to which they relate and are paid subject to approval
by the shareholders at Shire's annual general meeting pursuant to an ordinary
resolution. Any dividend unclaimed for a period of 12 years from the date such
dividend is due for payment shall be forfeited and shall cease to remain owing
by Shire.
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Where a person is, under the provisions as to the transmission of shares
contained in the Articles of Association, entitled to become a shareholder, the
board may at any time serve a notice on this person requiring him to elect
either to be registered himself or to have a person nominated by him registered
as a member. If the notice is not complied with within 60 days, the board may
withhold payment of all dividends payable in respect of these shares until the
requirements of the notice have been complied with. Where any person has an
interest of 0.25% or more in the nominal value of shares of a particular class
in Shire, the board may withhold dividends payable on shares held by this person
if there has been a failure to provide Shire with information concerning
interests on those shares required to be provided under the Articles of
Association and the Companies Act 1985 until this failure has been remedied.
Rights in a Winding-Up
Holders of ordinary shares are entitled to participate in any distribution
of the balance of the assets on a winding-up, after provision for or payment of
liabilities and creditors under the Insolvency Act 1986 and the Companies Act
1985. On a winding-up, the liquidator may, with any sanction required by law
divide among the shareholders the whole or any part of the assets of Shire in
kind, whether they shall consist of property of the same kind or not, and, for
that purpose, set those values as the liquidator determines fair upon any
property to be divided and determine how the division shall be carried out as
between the shareholders or different classes of shareholders. The liquidator
may not, however, distribute to a member, without his consent, any asset to
which there is attached a liability or potential liability for the owner.
Shareholder Meetings
An annual general meeting of shareholders must be held once each year
within a period of not more than 15 months after the date of the last preceding
annual general meeting. The board of directors may convene an extraordinary
general meeting of shareholders at its discretion. General meetings may be held
at the time and place as may be determined by the board of directors. An annual
general meeting shall be convened on at least 21 days' written notice to
shareholders entitled to receive notices. Most extraordinary general meetings
may be convened on at least 14 days' written notice, but extraordinary general
meetings at which it is proposed to pass special resolutions must be convened on
at least 21 days' written notice. Two shareholders entitled to vote must be
present in person or by proxy to constitute a quorum for all purposes at general
meetings except that the absence of a quorum shall not preclude the choice or
appointment of a chairman of the meeting.
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Voting Rights
Subject to any special rights, terms or restrictions as to voting upon
which any shares may be issued or held and to any other provisions of the
Articles of Association, every shareholder present in person at a general
meeting shall have one vote on a show of hands, and on a poll every shareholder
present in person or by proxy shall have one vote for every ordinary share of
which he is the holder. No shareholder shall, unless otherwise authorized by the
board of directors, be entitled to be present or vote at any general meeting of
Shire or at any separate general meeting of the holders of any class of shares
in Shire unless all calls or other sums presently payable by the shareholder in
respect of shares in Shire have been paid. See also "--Disclosure of Interests"
below.
Voting at any general meeting of shareholders is by a show of hands unless
a poll is duly demanded. A poll may be demanded by:
o the chairman of the meeting;
o not less than five shareholders present in person or by proxy entitled
to vote at the meeting;
o any shareholder or shareholders present in person or by proxy and
representing in aggregate not less than one-tenth of the total voting
rights of all shareholders entitled to attend and vote at the meeting;
or
o any shareholder or shareholders present in person or by proxy holding
shares conferring a right to attend and vote at the meeting on which
shares there have been paid sums in the aggregate equal to not less
than one-tenth of the total sum paid on all the shares conferring that
right.
Since under English law voting rights are only conferred on registered
holders of shares, a person holding through a nominee may not directly demand a
poll. This includes holders of American Depositary Shares ("ADSs") that are not
registered holders of shares.
Unless otherwise required by law or the Articles of Association, voting in
a general meeting is by ordinary resolution. These resolutions include:
o the election of directors;
o the approval of financial statements;
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o the declaration of final dividends;
o the appointment of auditors;
o the increase of authorized share capital; and
o the grant of authority to issue shares.
An ordinary resolution requires the affirmative vote of a majority of the
votes of those who are eligible to vote and vote in person in the case of
individuals or are represented by duly authorized representatives in the case of
corporations. If a poll is demanded, the affirmative vote of shareholders who
are present in person or by proxy in the case of individuals or are represented
by duly authorized representatives in the case of corporations and who in the
aggregate hold shares conferring a majority of the votes actually cast on the
resolution is required. A special resolution or an extraordinary resolution
requires the affirmative vote of not less than three-fourths of those who are
eligible to vote and vote in person in the case of individuals or are
represented by duly authorized representatives in the case of corporations. If a
poll is demanded, the affirmative vote of shareholders who are present in person
or by proxy in the case of individuals or are represented by duly authorized
representatives in the case of corporations and who in the aggregate hold shares
conferring three-fourths of the votes actually cast on the resolution is
required. Examples of special resolutions include resolutions relating to
matters concerning an alteration of Shire's Memorandum of Association or
Articles of Association or a members' voluntary winding-up of Shire or the
disapplication of statutory preemption rights in respect of the issuance of
equity securities to be paid wholly in cash. An example of an extraordinary
resolution is one which modifies the rights of any class of shares at a meeting
of the holders of such class. The chairman of the meeting has a second or
deciding vote in the case of a tied vote.
Authorization to Issue Shares; Preemptive Rights
The Companies Act 1985 provides that the directors may be authorized by
means of an ordinary resolution of the shareholders to issue up to the maximum
number of ordinary shares designated in such resolution for a maximum period not
exceeding five years, although generally in the case of companies whose shares
are admitted to the Official List of the United Kingdom Listing Authority and to
trading on the London Stock Exchange, these authorizations expire and are
renewed at the same time as the disapplication of pre-emptive rights. See
"--Share Capital" above. The Companies Act 1985 confers on shareholders, to the
extent not disapplied and other than in respect of issuances under employee
share plans, rights of preemption in respect of the issuance of equity
securities that are or are to be paid for
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wholly in cash. These provisions may be disapplied by a special resolution of
the shareholders, either generally or specifically, for a maximum period not
exceeding five years. With respect to future issuances of ordinary shares or
ADSs that are or are to be paid for wholly in cash and except to the extent
already disapplied, shareholders will have to approve the disapplication of
preemptive rights.
Variation of Rights
If at any time the share capital of Shire is divided into different classes
of shares, the rights attached to any class may be varied or abrogated, subject
to the provisions of the Companies Act 1985, in the manner as may be provided by
those rights or, in the absence of such a provision, either with the written
consent of the holders of at least three-fourths of the nominal amount of the
issued shares of the class or with the sanction of any extraordinary resolution
passed at a separate general meeting of the holders of the issued shares of that
class but not otherwise. At every such separate meeting, the quorum shall be two
persons present in person holding or representing by proxy at least one-third in
nominal amount of the issued shares of the class or, at an adjourned meeting,
any holder of the shares in question whether present in person or by proxy. The
rights conferred upon the holders of any class of shares shall not, unless
expressly attached to the terms of issuance of the shares, be determined to be
altered by the creation or issuance of further shares ranking pari passu with
those shares.
Alteration of Capital
Subject to the provisions of the Companies Act 1985 and to any special
rights previously conferred on the holders of any existing shares, any share may
be issued with or have attached to it such rights and restrictions as Shire may
determine by ordinary resolution or, if no resolution has been passed, as the
board of directors may decide. Redeemable shares may be issued subject to the
provisions of the Companies Act 1985 and to any rights conferred on the holders
of any class of existing shares.
Shire may by ordinary resolution:
o increase its share capital;
o consolidate and divide all or any of its share capital into shares of
a larger amount than its existing shares;
o subject to the provisions of the Companies Act 1985, subdivide all or
any of its shares into shares of a smaller nominal amount and decide
that the shares
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resulting from the subdivision have among themselves a preference or
other advantage or are subject to a restriction; and
o cancel any shares which have not been taken or agreed to be taken by
any person and diminish the amount of its authorized share capital by
the amount of the shares so canceled.
Subject to the provisions of the Companies Act 1985 and the rights attached
to existing shares, Shire may by special resolution reduce its authorized and
issued share capital, any capital redemption reserve and any share premium
account in any manner. Shire may also, subject to the requirements of the
Companies Act 1985 and to the rights conferred on holders of any class of
shares, purchase all or any of its own shares, including any redeemable shares.
Disclosure of Interests
Section 198 of the Companies Act 1985 provides that a person, including a
company and other legal entities, that acquires an interest of 3.0% or more of
any class of shares, including through ADRs, comprising part of a company's
issued share capital carrying the right to vote in all circumstances at a
general meeting of such company is required to notify the company of its
interest within two days following the day on which the notification obligation
arises. After the 3.0% level is exceeded, similar notifications must be made in
respect of increases or decreases taking the shareholding above or below a whole
percentage figure. Interests held by some investment fund managers may be
disregarded for the purposes of calculating the 3.0% threshold, but the
disclosure obligation will still apply where those interests exceed 10% or more
of any class of Shire's relevant share capital and to increases or decreases
taking the shareholding above or below a whole percentage figure after that
time.
For purposes of the notification obligation, the interest of a person in
shares means any kind of interest in shares including an interest in any shares:
o in which a spouse, or child or stepchild under the age of 18 is
interested;
o in which a corporate body is interested and either
-- that corporate body or its directors are generally accustomed to
act in accordance with that person's directions or instructions,
or
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-- that person controls one-third or more of the voting power of
that corporate body; or
o in which another party is interested and the person and that other
party are parties to a "concert party" agreement under Section 204 of
the Companies Act 1985. An agreement is a "concert party" agreement
if:
-- it provides for one or more parties to acquire interests in
shares of a particular company,
-- it imposes obligations or restrictions on any one or more of the
parties as to the use, retention or disposal of the interests
acquired under the agreement and
-- any interest in Shire's shares is in fact acquired by any of the
parties under the agreement.
In addition, Section 212 of the Companies Act 1985 provides that a public
company may by written notice require a person whom the company knows or has
reasonable cause to believe to be, or to have been at any time during the three
years immediately preceding the date on which the notice is issued, interested
in shares comprised in the company's issued share capital carrying the right to
vote in all circumstances at a general meeting of such company to confirm that
fact or to indicate whether or not that is the case, and where such person holds
or during the relevant time had held an interest in those shares, to give such
further information as may be required relating to that interest and any other
interest in the shares of which that person is aware.
Where notice is served by a company under the foregoing provisions on a
person who is or was interested in shares of the company and that person fails
to give the company any information required by the notice within the time
specified in the notice, the company may apply to the English court for an order
directing that the shares in question be subject to restrictions prohibiting,
among other things, any transfer of those shares, the exercise of the voting
rights in respect of those shares, the taking up of rights in respect of those
shares and, other than in liquidation, payments in respect of those shares.
A person who fails to fulfill the obligation imposed by Sections 198 to 202
and 212 of the Companies Act 1985 described above is subject to criminal
penalties.
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Share Acquisitions
The City Code on Takeovers and Mergers, issued and administered by the
Panel on Takeovers and Mergers in London, is applicable to Shire because Shire
is a public limited company incorporated and resident in England and Wales. The
City Code is intended to operate principally to ensure fair and equal treatment
of all shareholders in companies to which it applies. When persons hold or
acquire certain percentages of voting rights of a U.K. public company such as
Shire, these persons may be required, in certain circumstances, to make an offer
to all shareholders of that company for its shares. For purposes of the City
Code, the term persons includes all persons "acting in concert" as that term is
defined in the City Code.
Transfer of Shares
Any holder of ordinary shares may transfer all or any of those shares in
the manner authorized by the Stock Transfer Act 1963. The instrument of transfer
shall be signed by or on behalf of the transferor and, in the case of a partly
paid share, by or on behalf of the transferee. The transferor shall be deemed to
remain the holder of the share until the name of the transferee is entered in
the register of members of Shire in respect of it.
The directors may, in their absolute discretion and without assigning any
reason, refuse to register any transfer of shares unless:
o it is in respect of a fully paid share; provided that where any nil
paid or partly paid shares are admitted to the Official List of the
London Stock Exchange, such discretion may not be exercised in such a
way as to prevent dealings in such shares taking place on an open and
proper basis;
o it is duly stamped, is lodged with Shire and is accompanied by the
certificate for the shares to which it relates and such other evidence
as the directors may reasonably require to show the right of the
transferor to make the transfer;
o it is in respect of only one class of shares;
o it is in favor of not more than four transferees; and
o it is in respect of a share on which Shire has no lien.
Notwithstanding anything in the Articles to the contrary, any shares in
Shire may be issued, held, registered, converted to, transferred or otherwise
dealt with in uncertifi-
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cated form and converted from uncertificated form to certificated form in
accordance with The Uncertificated Securities Regulations 1995 (SI 1995/3272)
including any modification of and rules made under those provisions or any
regulations in substitution for those provisions made under Section 207 of the
Companies Act 1989 for the time being in force and practices instituted by an
operator of the relevant system. Any provision of the Articles shall not apply
to any uncertificated shares to the extent that those provisions are
inconsistent with:
o the holding of shares in uncertificated form;
o the transfer of title of shares by means of a relevant system; or
o any provision of the regulations referred to in this paragraph.
Other Shares Information
There are currently no U.K. foreign exchange controls on the payment of
dividends on the ordinary shares or the conduct of Shire's operations. There are
no restrictions under Shire's Memorandum and Articles of Association or under
English law that limit the right of non-resident or foreign owners to hold or
vote Shire's ordinary shares. However, no shareholders are entitled to receive
notices from Shire, including notices of shareholders' meetings, unless they
have given an address in the U.K. to Shire to which those notices may be sent.
Notwithstanding the foregoing, Shire provides information to the depositary,
which in turn forwards that information to the holders of ADSs.
Shire Special Voting Shares
17,292,149 Shire special voting shares were authorized for issuance
pursuant to the merger agreement among Shire, BioChem Pharma Inc., a corporation
incorporated under the laws of Canada, and Shire Acquisition Inc., a corporation
incorporated under the laws of Canada and a wholly owned subsidiary of Shire
("Exchangeco"), and, pursuant to the plan of arrangement, these Shire special
voting shares were issued to the trustee appointed under the voting and exchange
trust agreement. These Shire special voting shares were created by the division
of 35 existing authorized but unissued Shire ordinary shares into 17,292,149
Shire special voting shares of a nominal value of 0.00001p, being such number of
special voting shares as was equal to the number of issued and outstanding
exchangeable shares immediately after the effective date of the arrangement. The
trustee holds the Shire special voting shares in trust for the benefit of the
holders of the exchangeable shares (other than Shire and affiliates of Shire)
and is able to vote in person or by proxy on any matters put before the Shire
shareholders at a Shire general meeting. Each holder of exchangeable shares
(other than
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Shire or affiliates of Shire) is entitled to direct the trustee how to vote, in
effect, one Shire special voting share carrying three votes per share held by
the trustee for each exchangeable share owned by such holder or to attend the
meeting personally and vote directly as proxy for the trustee in respect of such
special voting shares. Unless instructed, the trustee may not vote, and any
exchangeable shares held by Shire or its affiliates may not be voted. Such votes
may be exercised for the election of directors and on all other matters
submitted to a vote of Shire shareholders. The holders of Shire ordinary shares
and the holder of the Shire special voting shares will vote together as a single
class on all matters, except to the extent voting as a separate class is
required by applicable laws or the Shire memorandum and articles of association.
The holder of the Shire special voting shares is not entitled to receive
dividends from Shire and, in the event of any liquidation, dissolution or
winding up of Shire, will receive an amount equal to the higher of 1p and the
par value thereof. To the extent that exchangeable shares are exchanged for
Shire ordinary shares or Shire ADSs pursuant to, and on the terms of, the voting
and exchange trust agreement, and to the extent that there are no shares of
stock, debt, options or other agreements of Exchangeco that could give rise to
the issuance of any exchangeable shares to any person (other than Shire and its
affiliates), the trustee shall forfeit such number of Shire special voting
shares to Shire as corresponds to the number of exchangeable shares thus
exchanged.
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