EXHIBIT 10.12
DATED 30 MARCH 2004
STARBUCKS CORPORATION
AND
OTHERS
TRUST DEED AND RULES
OF
THE STARBUCKS UK
SHARE INCENTIVE PLAN
Approved by a Directors' resolution on: November 20, 2003
Approved by the Inland Revenue on: April 16, 2004
Amended and Restated Rules Approved by a Directors' resolution on: November 14,
2006
Approved by Her Majesty's Revenue & Customs on: [__________]
Inland Revenue reference no: A1860
Prepared by Landwell
on behalf of
PricewaterhouseCoopers LLP
Plumtree Court
London EC4A 4HT
CONTENTS
TRUST DEED
CLAUSE PAGE NO
- ---------- -------
1 INTERPRETATION..................................................... 1
2 OBJECT OF TRUST.................................................... 2
3 ACHIEVING OBJECT OF TRUST.......................................... 2
3.1 Monies received from Participating Companies.................. 2
3.2 Partnership Shares Money...................................... 3
3.3 Dividends on Shares not Awarded............................... 3
4 UNUSED FUNDS....................................................... 4
4.1 Trustee to apply unused funds for costs etc................... 4
4.2 Trustee to account for monies upon termination of Plan........ 4
5 RIGHT TO DEAL WITH RECONSTRUCTIONS, ETC............................ 5
5.1 Trustee to act on Participant's directions.................... 5
5.2 No liability for acting on directions......................... 5
6 ACCOUNTABILITY FOR PAYE AND OTHER DEDUCTIONS....................... 5
7 MAINTENANCE OF TRUST RECORDS....................................... 5
7.1 Trustee to procure preparation of Trust records............... 5
7.2 Trustee to keep records of PAYE deductions.................... 6
7.3 Trustee to submit Trust records to Company.................... 6
7.4 Company's right to inspect Trust records...................... 6
8 SECURITIES AND TITLE............................................... 6
8.1 Securities may be placed in custody........................... 6
8.2 More than one Trustee may be registered proprietor............ 6
9 APPLICATION OF PLAN TO SUBSIDIARIES................................ 7
9.1 Extension of Plan to Subsidiaries............................. 7
9.2 Circumstances where Plan may cease to apply to Subsidiary..... 7
9.3 Trustee not liable to account to former Participating
Companies..................................................... 7
10 DUTIES OF PARTICIPATING COMPANIES.................................. 7
10.1 Duty to contribute sums and provide information............... 7
10.2 Continuing liability of former Participating Companies........ 8
11 PROTECTION OF TRUSTEE.............................................. 8
11.1 Corporate Trustee............................................. 8
11.2 Limited liability for monetary obligations.................... 8
11.3 Trustee to comply with Company's directions................... 8
11.4 Indemnity..................................................... 8
11.5 No obligation to become involved in management................ 9
12 ADDITIONAL POWERS.................................................. 9
i
12.1 Additional powers of Trustee.................................. 9
12.2 Trustee's power to invest monies etc.......................... 10
12.3 Trustee's power of sale....................................... 10
12.4 Trustee Act 2000.............................................. 10
13 PROCEEDINGS OF TRUSTEES............................................ 10
13.1 Scope of clause............................................... 10
13.2 Regulations for conduct of business........................... 10
13.3 Quorum for meetings of Trustees............................... 11
13.4 Majority voting of Trustees................................... 11
13.5 Written resolutions of Trustees............................... 11
14 ADMINISTRATION..................................................... 11
14.1 Delegation.................................................... 11
14.2 Trustee being a corporate body................................ 11
14.3 Minutes of meetings........................................... 11
14.4 Professional advice........................................... 12
14.5 Trustee's agents.............................................. 12
14.6 Trustee may execute deeds etc................................. 12
15 REMUNERATION AND INTERESTS OF TRUSTEES............................. 12
15.1 Individual Trustees........................................... 12
15.2 Professional Trustees......................................... 12
15.3 Corporate Trustees............................................ 13
15.4 Right to be employed by Company............................... 13
16 PERMITTED DEALINGS OF TRUSTEES..................................... 13
16.1 Trustees permitted to hold shares etc......................... 13
16.2 No requirement to account for benefits........................ 13
17 NUMBER, APPOINTMENT, RETIREMENT AND REMOVAL OF TRUSTEES............ 14
17.1 Minimum number of Trustees.................................... 14
17.2 Statutory power to appoint new and additional Trustees........ 14
17.3 Power to appoint additional Trustees.......................... 14
17.4 Company ceasing to exist...................................... 14
17.5 Removal of Trustees........................................... 15
17.6 Retirement of Trustees........................................ 15
17.7 Transfer of trust property following removal or retirement of
Trustee....................................................... 15
17.8 Section 37 of the Trustee Act 1925............................ 15
17.9 Residence of Trustees......................................... 15
18 DELEGATION OF ADMINISTRATION BY COMPANY AND OTHER MATTERS.......... 16
18.1 Delegation of administration.................................. 16
18.2 Exercise of powers............................................ 16
18.3 Information supplied by Company or Participating Company...... 16
19 DURATION AND WINDING UP OF PLAN.................................... 16
19.1 Termination on expiry of Trust Period......................... 16
19.2 Outstanding liabilities....................................... 17
ii
19.3 Completion of obligations..................................... 17
20 SUPREMACY OF TRUST DEED OVER RULES................................. 17
21 GOVERNING LAW AND JURISDICTION..................................... 17
21.1 Governing law................................................. 17
21.2 Jurisdiction.................................................. 17
21.3 Jurisdiction agreement for benefit of Company................. 17
21.4 Participant deemed to submit to such jurisdiction............. 17
22 AMENDMENT OF TRUST DEED AND RULES.................................. 18
22.1 Amendment of Trust Deed and Rules............................. 18
22.2 Amendments to be binding...................................... 18
23 GENERAL PROVISIONS................................................. 18
23.1 Counterparts.................................................. 18
23.2 Irrevocability................................................ 18
SCHEDULE
RULES OF STARBUCKS UK SHARE INCENTIVE PLAN
RULE
1 INTERPRETATION..................................................... 20
2 PURPOSE OF PLAN.................................................... 28
3 PARTICIPATION ON SAME TERMS........................................ 28
PART I - PARTNERSHIP SHARES
4 PARTNERSHIP SHARES INVITATIONS..................................... 29
4.1 Issue of Partnership Shares Invitations...................... 29
4.2 Timing of Partnership Shares Invitations..................... 29
4.3 Contents of Partnership Shares Invitations................... 29
4.4 Partnership Shares Agreement and Partnership Shares
Invitation................................................... 30
4.5 Contents of Partnership Shares Agreement..................... 30
4.6 Agreement may be withdrawn................................... 31
4.7 Excess Salary deductions..................................... 31
4.8 Scaling down................................................. 31
4.9 Partnership Shares Money held for Participant................ 31
4.10 Interest on Partnership Shares Money......................... 32
5 INSTRUCTIONS GIVEN DURING ACCUMULATION PERIOD...................... 32
5.1 Variation of Salary deductions and intervals................. 32
5.2 Notice to suspend Salary deductions.......................... 32
5.3 Notice to terminate Partnership Shares Agreement............. 33
5.4 Employer Company to give effect to notices................... 33
5.5 Partnership Shares Agreement to apply to new holding......... 33
iii
6 ACQUISITION OF PARTNERSHIP SHARES.................................. 34
6.1 Acquisition of Shares by Trustee (no Accumulation Period).... 34
6.2 Acquisition of Shares by Trustee (with Accumulation Period).. 34
6.3 Notification of acquisition to Participants.................. 34
6.4 Salary deductions not invested in Partnership Shares......... 35
7 TRANSFER OF PARTNERSHIP SHARES BY PARTICIPANT...................... 35
7.1 Participants may request transfer of Partnership Shares....... 35
7.2 Trustee to comply with request................................ 35
8 CESSATION OF RELEVANT EMPLOYMENT................................... 35
8.1 Trustee to be notified of cessation of Relevant Employment... 35
8.2 Cessation of Relevant Employment prior to Partnership Shares
Acquisition Date............................................. 35
8.3 Transfer of Partnership Shares on cessation of Relevant
Employment................................................... 36
PART II - MATCHING SHARES
9 NOTIFICATION OF MATCHING SHARES.................................... 37
9.1 Relationship to Partnership Shares........................... 37
9.2 Additional contents of Partnership Shares Agreement.......... 37
10 APPROPRIATION OF MATCHING SHARES................................... 38
10.1 Determination of number of Matching Shares................... 38
10.2 Appropriation of Matching Shares............................. 38
10.3 Notification of Appropriation to Participants................ 38
11 RESTRICTIONS ON DEALINGS IN, AND PERMITTED TRANSFERS OF, MATCHING
SHARES............................................................. 38
11.1 Restrictions on disposals by Participants.................... 38
11.2 Restrictions on disposals by Trustee......................... 39
11.3 Transfer of Matching Shares after Matching Shares Holding
Period....................................................... 39
12 CESSATION OF RELEVANT EMPLOYMENT AND EARLY WITHDRAWAL OF
PARTNERSHIP SHARES................................................. 39
12.1 Trustee to be notified of cessation of Relevant Employment... 39
12.2 Early withdrawal of Partnership Shares....................... 40
12.3 Early transfer of Matching Shares............................ 40
12.4 Forfeiture of Matching Shares................................ 40
12.5 Injury, disability, redundancy, retirement etc............... 40
12.6 Death........................................................ 41
PART III - GENERAL REQUIREMENTS
13 REQUIREMENTS GENERALLY APPLICABLE TO PLAN SHARES................... 42
13.1 Participants may elect not to participate.................... 42
13.2 Individuals eligible for Appropriation....................... 42
13.3 Shares not Appropriated or forfeited......................... 42
iv
13.4 Shares ceasing to qualify.................................... 42
13.5 Death of Participant......................................... 42
13.6 Funds to be provided by Participating Companies.............. 43
13.7 Shares purchased off market by Trustee....................... 43
13.8 Subscription price........................................... 43
13.9 Rights attaching to subscribed Shares........................ 43
13.10 Proportionate apportionment of Shares with different rights.. 43
13.11 Foreign dividends............................................ 44
13.12 Timing of contributions to Trustee........................... 44
14 PERMITTED DEALINGS IN PLAN SHARES.................................. 44
15 RECEIPTS BY TRUSTEE................................................ 45
16 EXERCISE OF VOTING RIGHTS ATTACHING TO PLAN SHARES................. 45
17 COMPANY RECONSTRUCTIONS............................................ 46
17.1 New holdings of Shares....................................... 46
17.2 Meaning of "new holding"..................................... 46
18 RIGHTS ISSUES...................................................... 47
18.1 Application of rule.......................................... 47
18.2 Trustee to provide information to Participants............... 47
18.3 Participants to give written directions to Trustee........... 47
18.4 Cash amounts arising to be dealt with by Trustee............. 47
18.5 Failure by Participant to give any direction................. 48
19 CHANGES IN CAPITALIZATION.......................................... 48
20 DUTY TO ACCOUNT FOR PAYE ON CASH AMOUNTS........................... 48
20.1 Trustee to make PAYE deductions.............................. 48
20.2 Trustee to deal with PAYE deductions......................... 48
21 DUTY TO ACCOUNT FOR PAYE ON TRANSFERS OF ASSETS.................... 49
21.1 Trustee to make PAYE deductions.............................. 49
21.2 Trustee to deal with PAYE deductions......................... 49
22 APPORTIONMENT OF CAPITAL RECEIPTS.................................. 49
22.1 Treatment of Capital Receipts................................ 49
22.2 Trustee to inform Participants............................... 50
23 TERMINATION OF PLAN................................................ 50
23.1 Company may terminate Plan................................... 50
23.2 Consequences of termination of Plan.......................... 50
23.3 Inland Revenue withdrawal of Plan approval................... 51
24 SHARES FROM QUALIFYING SHARE OWNERSHIP TRUSTS...................... 51
25 NOTICES............................................................ 51
25.1 Notice by Company, Employer Company, Directors or Trustee.... 51
25.2 Deceased Participant......................................... 51
25.3 Notice to Company, Employer Company, Directors or Trustee.... 51
25.4 Distribution of Company documentation........................ 52
25.5 Notification of liability to income tax...................... 52
v
25.6 Exclusion of electronic communications in certain
circumstances................................................ 52
26 FRACTIONAL ENTITLEMENTS............................................ 52
27 PROTECTION OF TRUSTEE.............................................. 52
28 RELATIONSHIP OF PLAN TO CONTRACT OF EMPLOYMENT..................... 53
29 ALTERATIONS........................................................ 53
vi
THIS DEED OF TRUST IS MADE ON _______________ 2004
BETWEEN:
(1) STARBUCKS CORPORATION incorporated under the laws of the State of
Washington, United States of America whose principal office is situated at
2401 Utah Avenue South, Seattle, WA 98134, United States of America ("the
Company");
(2) YORKSHIRE BUILDING SOCIETY whose principal office is situated at Yorkshire
House, Yorkshire Drive, Bradford BD5 8LJ, United Kingdom; and
(3) STARBUCKS COFFEE COMPANY (UK) LIMITED incorporated in England and Wales
under company number 2959325 whose registered office is situated at 11
Heathmans Road, Parsons Green, London SW6 4TJ, United Kingdom.
PRELIMINARY:
(A) The Company wishes to establish a share incentive plan approved in
accordance with the provisions of Schedule 2 and constituting an Employees'
Share Scheme.
(B) The Plan has been approved by a resolution of the Directors passed at a
meeting held on November 20, 2003.
(C) The Trustee has agreed to act as the first trustee of the Plan.
(D) The Trustee has received the sum of L50 from the Company as an initial
contribution to the trusts established by this Trust Deed.
THE TRUST DEED WITNESSES as follows:
1 INTERPRETATION
In this Trust Deed:
1.1 unless the context otherwise requires the definitions set out in Rule 1.1
of the Rules in the schedule to this Trust Deed (the "Rules") shall apply
and the following words and expressions shall have the following meanings:
(1)
BENEFICIARY a bona fide employee or former employee of the Company, a
Subsidiary or the Company's holding company or any company
over which the Company's holding company has Control;
CHARITABLE exclusively charitable under English law;
TRUST DEED this trust deed in its present form or as amended from time
to time;
TRUST PERIOD the period commencing on the date of this Trust Deed an
ending on the expiry of 80 years from the date of this Trust
Deed and so that the period of 80 years from the date of
this Trust Deed shall be the perpetuity period for the
purpose of section 1 of the Perpetuities and Accumulations
Act 1964; and
TRUSTEE Yorkshire Building Society and any additional or replacement
trustee from time to time of the Plan.
1.2 Unless otherwise specified, the interpretation provisions of Rule 1.2 of
the Rules shall apply.
1.3 References to clauses are to clauses of this Trust Deed.
2 OBJECT OF TRUST
All Plan Shares and any other assets held by the Trustee will be held UPON
TRUST for the Beneficiaries respectively entitled to them under the Plan
subject to the provisions set out below and to the power of the Trustee to
transfer or cause to be transferred to the person beneficially entitled to
them any Plan Shares in accordance with the Plan.
3 ACHIEVING OBJECT OF TRUST
3.1 MONIES RECEIVED FROM PARTICIPATING COMPANIES
Subject to the provisions set out below the Trustee shall apply monies it
receives from the Participating Companies in the acquisition of Shares for
Appropriation or for the purposes of clause 4.1 and to hold such Shares
once Appropriated and all other trust property deriving from such Shares on
trust for the Participants to whom such Shares have been Appropriated and
to apply and deal with the same in accordance with the Plan provided always
that:
(2)
3.1.1 the Trustee shall not dispose of a Participant's Matching Shares
during the Matching Shares Holding Period (whether by transfer to the
Participant or otherwise) except as provided by the Rules;
3.1.2 the Trustee shall not (subject to the Rules) dispose of any of a
Participant's Matching Shares after the end of the Matching Shares
Holding Period except pursuant to a direction validly given by or on
behalf of the Participant or any person in whom the beneficial
interest in those Shares is for the time being vested; and
3.1.3 the Trustee shall deal with any right attaching to Matching Shares to
be allotted or to acquire other shares, securities or rights of any
description only pursuant to a written direction given by or on behalf
of the Participant or any person in whom the beneficial interest in
such Matching Shares is for the time being vested.
3.2 PARTNERSHIP SHARES MONEY
Subject to the provisions set out below the Trustee shall apply Partnership
Shares Money in the acquisition of Partnership Shares and shall hold such
Shares once acquired on trust for the Participants on whose respective
behalves they have been acquired and apply and deal with the same in
accordance with the Plan provided always that:
3.2.1 the Trustee shall not (subject to the Rules) dispose of a
Participant's Partnership Shares (whether by transfer to the
Participant or otherwise) except pursuant to a written direction
validly given by or on behalf of the Participant or any person in whom
the beneficial interest in those Partnership Shares is for the time
being vested;
3.2.2 the Trustee shall deal with any right attaching to Partnership Shares
to acquire other shares securities or rights of any description only
pursuant to a written direction given by or on behalf of the
Participant or any person in whom the beneficial interest in the
Partnership Shares is for the time being vested.
3.3 DIVIDENDS ON SHARES NOT AWARDED
The Trustee shall not demand or in any way enforce payment of any dividends
which would otherwise be payable on any Shares for the time being comprised
within the Trust Fund which are not held for the benefit of a Participant
in consequence of an Appropriation to him or any acquisition of Partnership
Shares by him and the Trustee hereby waives its entitlement thereto save to
the extent of L0.0001 per Share but where
(3)
the Company decides to pay dividends on such Shares the Trustee shall
retain such dividends to be used for the general purposes of the Plan.
4 UNUSED FUNDS
4.1 TRUSTEE TO APPLY UNUSED FUNDS FOR COSTS ETC
Where pursuant to the Plan the Trustee holds any monies, shares, securities
or other assets which represent or represent income derived from:
4.1.1 any monies or assets received from the Participating Companies for
the purposes of the Plan but which have not been applied and which are
not required to be applied under the Plan for an Appropriation; or
4.1.2 any Capital Receipt of less than L3 which would be distributable to a
Participant save for the provisions concerning such sums in the Rules;
and
4.1.3 any assets relating to the Plan (including any amounts specifically
paid to the Trustee as a contribution to any costs, charges and
expenses incurred in connection with the establishment and operation
of the Plan) which are not held for the benefit of a Participant in
consequence of an Appropriation to him or any acquisition of
Partnership Shares by him and which are not required to be applied
under the Plan;
the Trustee may apply such assets or the sale proceeds thereof in or
towards any reasonable costs, charges and expenses of the Plan (including
for the avoidance of doubt any amounts necessary to facilitate the Award of
Partnership Shares) and may during the Trust Period and subject to the law
relating to accumulations accumulate any income thereon and hold the same
for the general purposes of the Plan. The Trustee shall notify the Company
on request of all amounts and assets held for such purposes.
4.2 TRUSTEE TO ACCOUNT FOR MONIES UPON TERMINATION OF PLAN
If at any time the Plan is terminated the Trustee shall account to the
Participating Companies as instructed by the Company for any unused monies
then held on the trusts of clause 4.1. Notwithstanding such termination the
Trustee shall continue to administer the Plan in accordance with the Trust
Deed and the Rules. At the earlier of the expiry of the Trust Period and
the third anniversary of the termination of the Plan the Trustee shall
convert into money any trust property held subject to the trusts of the
Plan declared in the Trust Deed and which are not Partnership Shares nor
Appropriated to Participants and shall pay such money to such one or more
Charitable organisations and if more than one in such proportions as the
Trustee shall, in its absolute discretion determine. The receipt
(4)
of the proper officer of the recipient Charitable organisation shall be a
valid discharge of the Trustee for the benefit received by it.
5 RIGHT TO DEAL WITH RECONSTRUCTIONS, ETC
5.1 TRUSTEE TO ACT ON PARTICIPANT'S DIRECTIONS
The Trustee may at any time on behalf of any Participant who has given a
direction to the Trustee under the Rules (but not otherwise) enter into any
compromise or arrangement with respect to or may release or forbear to
exercise all or any of its rights as shareholder whether in connection with
a scheme of reconstruction or amalgamation or otherwise and may accept in
or towards satisfaction of all or any of such rights such consideration as
such Participant shall direct whether in the form of cash, stock, shares,
debentures, debenture stock or obligations or securities without the
Trustee being in any way liable or responsible for any loss resulting from
complying with any such direction or any liability or increased liability
of such Participant to tax or in respect of any inadequacy or alleged
inadequacy in the nature or amount of such consideration.
5.2 NO LIABILITY FOR ACTING ON DIRECTIONS
The Trustee shall not be liable or responsible for any loss or any
liability or increased liability of a Participant to tax arising out of the
failure of such Participant to give a direction to the Trustee or the
failure of such Participant to give a direction to the Trustee within a
particular time or if the Participant has directed the Trustee to use its
discretion in any way arising out of the bona fide exercise by the Trustee
of that discretion.
6 ACCOUNTABILITY FOR PAYE AND OTHER DEDUCTIONS
The Company, any Employer Company or the Trustee may account to the Inland
Revenue or other authority concerned for any amounts deducted from payments
made, or assets transferred, pursuant to the Plan in respect of income tax
or any other deductions required by statute or regulations made thereunder.
7 MAINTENANCE OF TRUST RECORDS
7.1 TRUSTEE TO PROCURE PREPARATION OF TRUST RECORDS
The Trustee shall maintain all necessary accounts (including the accounts
of individual employees), records and other documents necessary to carry
out its obligations in connection with:
(5)
7.1.1 the proper administration of the Plan (including maintaining records
of employees who have been participants in more than one share
incentive plan approved under Schedule 2 and established by the
Company or a Connected Company); and
7.1.2 the PAYE obligations of the Employer Company so far as they relate to
the Plan.
7.2 TRUSTEE TO KEEP RECORDS OF PAYE DEDUCTIONS
The Trustee shall keep records of all PAYE deductions, including payments
to the Employer Companies in respect of PAYE obligations.
7.3 TRUSTEE TO SUBMIT TRUST RECORDS TO COMPANY
The Trustee shall submit to the Company such reports or other information
as it may reasonably require for the purpose of ensuring that the Plan is
properly administered and without prejudice to the generality of the
foregoing the Trustee shall submit to the Company copies of all documents
including the annual returns which have been supplied to the Board of
Inland Revenue within twenty-one days of their being so supplied.
7.4 COMPANY'S RIGHT TO INSPECT TRUST RECORDS
The Company shall at all times be entitled on service of three days written
notice or as otherwise agreed between the Company and the Trustee to
inspect all accounts, documents and records maintained by the Trustee for
the purposes of the Plan and may at any time and at its absolute discretion
audit or cause to be audited those accounts, documents and records.
8 SECURITIES AND TITLE
8.1 SECURITIES MAY BE PLACED IN CUSTODY
The Trustee may place the documents of title for the time being in its
possession in any bank or safe deposit and shall not be responsible for any
losses incurred by so doing.
8.2 MORE THAN ONE TRUSTEE MAY BE REGISTERED PROPRIETOR
At any time when there is more than one Trustee, they shall be entitled to
procure that any one or more of them may be registered as proprietor of any
property held by them upon the trusts of the Trust Deed.
(6)
9 APPLICATION OF PLAN TO SUBSIDIARIES
9.1 EXTENSION OF PLAN TO SUBSIDIARIES
The Plan may with the consent of the Company be extended to any Subsidiary
by a deed of adherence in a form approved by the Company executed by that
Subsidiary and the Company.
9.2 CIRCUMSTANCES WHERE PLAN MAY CEASE TO APPLY TO SUBSIDIARY
The Plan shall cease to extend to a Participating Company when:
9.2.1 such Participating Company ceases to be a Subsidiary; or
9.2.2 a notice is served by the Company upon the Trustee and the
Participating Company that the Plan shall cease to apply to that
Participating Company; or
9.2.3 a Participating Company withdraws from the Plan on such conditions as
may be agreed by the Company
but such cessation shall not affect the subsisting rights of Participants
under the Plan which have arisen under the Plan prior to such cessation.
9.3 TRUSTEE NOT LIABLE TO ACCOUNT TO FORMER PARTICIPATING COMPANIES
Where the Plan ceases to extend to a Participating Company in accordance
with clause 9.2 then the Trustee shall not be liable to account to such
Participating Company for any unused monies then held on the trusts of
clause 4.1.
10 DUTIES OF PARTICIPATING COMPANIES
10.1 DUTY TO CONTRIBUTE SUMS AND PROVIDE INFORMATION
If and so long as any company is a Participating Company it shall:
10.1.1 contribute and pay to the Trustee such sums as are required by the
Trustee to purchase or subscribe for Shares to be Awarded to
Participants of that Participating Company together with a fair
proportion of the sums required to meet:
10.1.1.1 the reasonable expenses of the Trustee in operating and
administering the Plan; and
(7)
10.1.1.2 any remuneration payable to the Trustee
to the extent that such expenses and remuneration cannot be met out of
such of the assets held by the Trustee as are applicable for that
purpose.
10.1.2 provide the Trustee with all information reasonably required from it
for the purposes of the administration and operation of the Plan in
such form as the Trustee may reasonably require.
10.2 CONTINUING LIABILITY OF FORMER PARTICIPATING COMPANIES
Any company that ceases to be a Participating Company shall remain liable
to meet its fair proportion of the expenses of the Trustee.
11 PROTECTION OF TRUSTEE
11.1 CORPORATE TRUSTEE
For the purpose of this clause 11, in the case of a corporate trustee, the
term Trustee shall include the Trustee's directors, officers and employees.
11.2 LIMITED LIABILITY FOR MONETARY OBLIGATIONS
The Trustee shall not be liable to satisfy any monetary obligations under
the Plan (including but without prejudice to the generality of the
foregoing any monetary obligations to Eligible Partners) beyond the sums of
money (including income) from time to time in its hands or under its
control as Trustee of the Plan and properly applicable for that purpose.
11.3 TRUSTEE TO COMPLY WITH COMPANY'S DIRECTIONS
The Trustee shall comply with any directions given by the Company
(including for the avoidance of doubt any person to whom any delegation
under clause 18.1 has been made) under the Plan and shall not be under any
liability in respect of such compliance to the Company (or such other
person under clause 18.1) or to any Eligible Partner.
11.4 INDEMNITY
The Company shall indemnify the Trustee in respect of the liabilities that
the Trustee incurs in connection with the Trust on the terms mutually
agreed from time to time.
(8)
11.5 NO OBLIGATION TO BECOME INVOLVED IN MANAGEMENT
The Trustee shall not be under any obligation to:
11.5.1 become a director or other officer, or interfere in the management
or affairs, of any company, any of the shares, debentures, debenture
stock or securities which are held on the trusts created by the Trust
Deed or of any company associated with any such company,
notwithstanding that the Trustee may have (whether directly or
indirectly) a substantial holding in, or control of, any such company;
or
11.5.2 seek information about the affairs of any such company but may leave
the conduct of the affairs of any such company to its directors,
officers or other persons managing the company provided the Trustee
has no actual notice of any act of dishonesty on the part of such
persons in connection with the management of the company.
12 ADDITIONAL POWERS
12.1 ADDITIONAL POWERS OF TRUSTEE
In addition and without prejudice to the powers vested in it by the other
provisions of the Trust Deed and by law, the Trustee shall have the
following powers and discretions:
12.1.1 to agree with the Company all matters relating to the operation and
administration of the trusts created by the Trust Deed and so that no
person claiming an interest under the Trust shall be entitled to
question the legality or correctness of any arrangement or agreement
made between the Company and the Trustee in relation to such operation
and administration;
12.1.2 from time to time in writing to authorise such other person or
persons whether or not a Trustee, as the Trustee shall think fit to
draw and endorse cheques and to give receipts and discharges for any
monies or other property payable transferable or deliverable to the
Trustee and every such receipt or discharge shall be as valid and
effectual as if such receipt or discharge was given by the Trustee and
the production of such written authority of the Trustee shall be a
sufficient protection to any person taking any such receipt or
discharge and (unless that person shall have received express notice
in writing of the revocation of the authority) he shall be entitled to
assume and act upon the assumption that the authority remains
unrevoked;
12.1.3 at any time, to borrow or raise money only for the purpose of
subscribing for or purchasing Shares or any other purpose for which
money may be applied under
(9)
the Trust Deed. Any loan made by a Participating Company to the
Trustee shall be on such terms as the Participating Company and the
Trustee agree;
12.1.4 to make any payment to any Beneficiary into the Beneficiary's bank
account and the Trustee shall be discharged from obtaining a receipt
or seeing the application of any such payment; and
12.1.5 to pay any amount, whether income or capital, intended to be paid
to, or applied for the benefit generally of, any minor to his or her
parent or guardian, whose receipt shall be a valid discharge of the
Trustee.
12.2 TRUSTEE'S POWER TO INVEST MONIES ETC
Subject to any provision to the contrary in the Rules the Trustee shall in
respect of monies or other assets not held on trust for a Participant have
the same full and unrestricted powers of investing and transposing
investments and laying out monies in all respects as if it were absolutely
entitled to them beneficially and without regard to any requirement as to
diversification.
12.3 TRUSTEE'S POWER OF SALE
Subject to any provision to the contrary in the Rules the Trustee shall in
respect of any assets not held on trust for a Participant have all the
powers of sale of a beneficial owner in respect of such assets.
12.4 TRUSTEE ACT 2000
Sections 4 and 5 of, and paragraph 1 of Schedule 1 to, the Trustee Act 2000
shall not apply.
13 PROCEEDINGS OF TRUSTEES
13.1 SCOPE OF CLAUSE
Unless a corporate trustee is the sole Trustee, the following provisions of
this clause 13 shall govern the proceedings of the Trustees.
13.2 REGULATIONS FOR CONDUCT OF BUSINESS
The Trustees shall meet together and, subject to the following provisions
of this clause 13, make such regulations for the conduct of their business
as they determine.
(10)
13.3 QUORUM FOR MEETINGS OF TRUSTEES
The quorum for any meeting of the Trustees shall be two. A meeting of the
Trustees at which a quorum is present shall be competent to exercise all
the powers and discretions exercisable by the Trustees generally.
13.4 MAJORITY VOTING OF TRUSTEES
At any meeting of the Trustees, all questions shall be decided by a
majority of the votes of the Trustees present and voting thereon. In the
event of an equality of votes, the chairman of the meeting, if any, shall
have a second or casting vote. In the event of an equality of votes on the
election of a chairman at any meeting, the chairman shall be chosen by lot.
13.5 WRITTEN RESOLUTIONS OF TRUSTEES
A resolution in writing signed by all the Trustees shall be as valid and
effective as if it had been passed at a meeting of the Trustees and the
same may consist of two or more documents in similar form each signed by
one or more of the Trustees.
14 ADMINISTRATION
14.1 DELEGATION
Where there is more than one Trustee, the Trustees may from time to time
delegate any business to any one or more of their number.
14.2 TRUSTEE BEING A CORPORATE BODY
A Trustee which is a corporate body may in its capacity as a Trustee act by
its officers and employees and may by such officers and employees have and
exercise all powers trusts and discretions vested in it under the Trust
Deed.
14.3 MINUTES OF MEETINGS
The Trustee shall cause proper minutes to be kept and entered in a book
provided for the purpose of all its resolutions and proceedings and any
such minutes of any meeting of the Trustee, if purported to be signed by
the chairman of such meeting or by the chairman of a subsequent meeting,
shall be admissible as prima facie evidence of the matters stated in such
minutes.
(11)
14.4 PROFESSIONAL ADVICE
The Trustee may employ and act on the advice or opinion of any solicitor,
accountant, or other person engaged in any profession or business whether
such advice was obtained by the Trustee or by the Company. The Trustee
shall not be responsible for any loss occasioned by its acting on that
advice.
14.5 TRUSTEE'S AGENTS
The Trustee may employ on such terms as the Company may agree as to
remuneration any agent to transact any business in connection with the Plan
and the Trustee shall not be liable for any loss arising by reason of the
fraud or negligence of such agent.
14.6 TRUSTEE MAY EXECUTE DEEDS ETC
The Trustee may execute or authorise the execution or delivery by any agent
of it of any trust, deeds, documents or other instruments by the impression
of the Trustees' signatures (where there is more than one Trustee) or (in
the case of a sole corporate Trustee) by the signature of two or more
officers of the corporate Trustee, in writing, printing, lithograph,
photocopying and other modes of representing or reproducing words in a
visible form and may authorise the delivery of such instruments on its
behalf.
15 REMUNERATION AND INTERESTS OF TRUSTEES
15.1 INDIVIDUAL TRUSTEES
Any individual Trustee shall be entitled to receive and retain as
remuneration for his services under the Trust Deed such sum or sums as a
Participating Company may from time to time resolve to pay to him
notwithstanding that he is also an officer or employee of a Participating
Company and he shall not be disqualified from voting or taking part in any
decision of the Trustees on any matter by virtue of any personal or
beneficial interest (actual or prospective) therein.
15.2 PROFESSIONAL TRUSTEES
Any Trustee who is a solicitor, accountant, or other person engaged in any
profession or business shall be entitled to charge and be paid all normal
and other charges for business transacted, services rendered or time spent
personally or by the Trustee's firm in connection with the Plan, including
acts which a Trustee not engaged in any profession or business could have
done personally.
(12)
15.3 CORPORATE TRUSTEES
Any Trustee which is a corporate body shall be entitled to charge and be
paid such reasonable remuneration or charges as shall from time to time be
agreed in writing between the Company and such corporate body and any such
corporate body (being a bank) shall be entitled subject to the written
consent of the Company, to act as banker and perform any services in
relation to the Plan on the same terms as would be made with a customer in
the ordinary course of its business as a banker without accounting for any
resultant profit including without prejudice to the generality of the
foregoing retention of its customary share of brokerage commission.
15.4 RIGHT TO BE EMPLOYED BY COMPANY
Any Trustee or officer of a corporate trustee may be employed by, or be
appointed an officer of, the Company or any Subsidiary and shall be
entitled to keep for his benefit such remuneration or any other benefit as
he may receive by virtue of such position and shall not be liable to
account for any such benefit.
16 PERMITTED DEALINGS OF TRUSTEES
16.1 TRUSTEES PERMITTED TO HOLD SHARES ETC
No Trustee (nor any director or other officer or employee of a corporate
body acting as a Trustee) shall be precluded from acquiring, holding or
dealing with any shares, debentures, debenture stock or securities of the
Company or any Participating Company or any other company in which the
Trustee may be interested or from entering into any contract or other
transaction with the Company or any Participating Company or any such other
company or being interested in any such contract or transaction. No Trustee
(nor any director or other officer of a company acting as a Trustee) shall
be liable to account to any Beneficiary, Eligible Partner or Participant
or, where there is more than one Trustee, to the other Trustees or the
Company or any Participating Company or such other company for any profits
so made or benefits so obtained by him.
16.2 NO REQUIREMENT TO ACCOUNT FOR BENEFITS
The Trustee (and any director or other officer of a corporate body acting
as a Trustee) who is or becomes a Participant may retain all benefits to
which he becomes entitled under the Plan and shall not be liable to account
for any such benefit.
(13)
17 NUMBER, APPOINTMENT, RETIREMENT AND REMOVAL OF TRUSTEES
17.1 MINIMUM NUMBER OF TRUSTEES
The minimum number of Trustees shall be:
17.1.1 in the case of a Trustee which is a corporate body (whether or not a
trust corporation), one; and
17.1.2 in any other case, three.
17.1.3 while the number of Trustees is below the minimum number, a
continuing Trustee shall not be entitled to exercise any power or
discretion under the Trust Deed.
17.1.4 if, after the removal, retirement or death of a Trustee, there are
fewer than the minimum number of Trustees required by clause 17.1, the
Company shall forthwith appoint a new Trustee in place of the removed
retiring or dead Trustee.
17.2 STATUTORY POWER TO APPOINT NEW AND ADDITIONAL TRUSTEES
The statutory power of appointing new and additional Trustees contained in
section 36 of the Trustee Act 1925 shall be vested in the Company and may
be exercised by a resolution of the Directors or in writing signed by a
person duly authorised by a resolution of the Directors.
17.3 POWER TO APPOINT ADDITIONAL TRUSTEES
In addition to the statutory power of appointing new and additional
Trustees, the Company shall have the power by a resolution of the Directors
or in writing signed by a person duly authorised by a resolution of the
Directors to appoint additional Trustees notwithstanding that the effect of
such appointment would be to increase the number of Trustees beyond four.
17.4 COMPANY CEASING TO EXIST
If the Company ceases to exist otherwise than in consequence of a
reconstruction or amalgamation, all powers of appointing and removing
Trustees shall become vested in the Trustee.
(14)
17.5 REMOVAL OF TRUSTEES
The Company may by a resolution of the Directors or in writing signed by a
person duly authorised by a resolution of the Directors, notice of which,
in either case, is given to the Trustee, and without assigning any reason
therefor, remove a Trustee from office, but not so as to reduce the number
of Trustees below that specified in clause 17.1. If no later date is
specified in the notice, such removal shall take place immediately on the
receipt of the notice by the Trustee. If a later date is specified in the
notice, such removal shall take place on the later of the receipt of the
notice by the Trustee and the date specified in the notice.
17.6 RETIREMENT OF TRUSTEES
A Trustee may retire by giving the Company written notice of his desire to
retire but not so as to reduce the number of Trustees below that specified
in clause 17.1.
If the requirements of clause 17.1 will continue to be satisfied such
notice shall take effect at the expiry of three months or such other period
as may be agreed in writing by the Company after the date of such notice.
If the requirements of clause 17.1 will not continue to be satisfied, the
Company shall, within three months after the giving of such notice, appoint
an additional Trustee. If the Company fails to do so within such period,
the retiring Trustee may by deed appoint an additional Trustee and his
retirement shall thereupon become effective.
17.7 TRANSFER OF TRUST PROPERTY FOLLOWING REMOVAL OR RETIREMENT OF TRUSTEE
Forthwith following his removal or retirement as a Trustee, the outgoing
Trustee shall transfer all property held by him subject to the Plan and
deliver all documents in his possession relating to the Plan to the
remaining Trustees and shall execute all such documents and do all such
things as may be necessary to give effect to his removal or retirement.
17.8 SECTION 37 OF THE TRUSTEE ACT 1925
Section 37(1)(c) of the Trustee Act 1925 shall apply to the Plan as if all
references in that section to a trust corporation were references to any
company authorised by its memorandum and articles to undertake trust
business.
17.9 RESIDENCE OF TRUSTEES
The Company shall ensure that all the Trustees or any sole Trustee which is
a corporate body shall at all times be resident for tax purposes in the
United Kingdom.
(15)
18 DELEGATION OF ADMINISTRATION BY COMPANY AND OTHER MATTERS
18.1 DELEGATION OF ADMINISTRATION
The Company or the Directors may at any time delegate in writing to the
directors of any Participating Company or to the Company's or any
Participating Company's duly authorised officers any of its powers and
duties under the Trust Deed or the Rules or any business including the
exercise of any discretion provided always that the Company shall not
delegate the duties imposed on it or the rights given to it under clauses
9.1, 11.4, 17.2, 17.3, 17.5 or 22.
18.2 EXERCISE OF POWERS
Except as otherwise provided in the Trust Deed or in the Rules the powers
and discretions exercisable by the Company or any Participating Company in
relation to the Plan shall be exercisable in the case of the Company by the
Directors and otherwise by resolution of the board of directors of such
Participating Company or by a duly authorised committee thereof and a copy
of any resolution signed or purporting to be signed by the secretary or any
director of such company shall be sufficient authority to the Trustee to
act thereunder.
18.3 INFORMATION SUPPLIED BY COMPANY OR PARTICIPATING COMPANY
The Trustee shall be entitled, in the absence of manifest error, to rely
without further enquiry on any information or advice supplied to it by the
Company or any Participating Company in connection with the trust created
by the Trust Deed.
19 DURATION AND WINDING UP OF PLAN
19.1 TERMINATION ON EXPIRY OF TRUST PERIOD
The Plan shall terminate on the earlier of:
19.1.1 the expiry of the Trust Period; and
19.1.2 a plan termination notice validly issued under Rule 22
and references throughout the Trust Deed and the Rules to a termination of
the Plan shall be taken to be a termination as herein provided.
(16)
19.2 OUTSTANDING LIABILITIES
On or after the termination of the Plan no further sums shall be paid to
the Trustee by the Participating Companies save that all Participating
Companies shall remain liable to pay their just proportion of the costs
charges and expenses of the Plan.
19.3 COMPLETION OF OBLIGATIONS
Following any termination of the Plan the Trustee shall remain responsible
for the completion of its obligations under the Plan.
20 SUPREMACY OF TRUST DEED OVER RULES
The Trustee's rights duties and powers are regulated by the Trust Deed and
by the Rules and in the case of inconsistency or conflict between the
provisions of the Trust Deed and of the Rules the provisions of the Trust
Deed shall prevail.
21 GOVERNING LAW AND JURISDICTION
21.1 GOVERNING LAW
The formation, existence, construction, performance, validity and all
aspects whatsoever of the Trust Deed and the Rules or any term of the Trust
Deed or any Rules shall be governed by English law.
21.2 JURISDICTION
Subject to clause 21.3, the English courts shall have exclusive
jurisdiction to settle any dispute which may arise out of, or in connection
with, the Trust Deed or the Rules.
21.3 JURISDICTION AGREEMENT FOR BENEFIT OF COMPANY
The Company retains the right to bring proceedings in the English courts or
any other court of competent jurisdiction.
21.4 PARTICIPANT DEEMED TO SUBMIT TO SUCH JURISDICTION
By applying for and/or accepting an Award and not renouncing it, a
Participant is deemed to have agreed to submit to such jurisdiction.
(17)
22 AMENDMENT OF TRUST DEED AND RULES
22.1 AMENDMENT OF TRUST DEED AND RULES
The Company may at any time and from time to time in the case of the Trust
Deed by a supplemental deed and in the case of the Rules by resolution of
the Directors amend, modify, or alter the Plan in any respect (such
amendment modification or alteration being referred to in this clause 22.1
as a "modification") provided that:
22.1.1 no modification shall alter to the disadvantage of any Participant
his rights which have accrued to him under the Plan before the date of
such modification;
22.1.2 no modification shall modify or alter to the disadvantage of the
Trustee the provisions for its protection and indemnity contained in
the Plan without the written agreement of the Trustee;
22.1.3 no modification shall be made which would or might infringe any rule
against perpetuities or which could result in the Plan ceasing to be
an Employees' Share Scheme; and
22.1.4 whilst the Plan is approved by the Board of Inland Revenue, no
modification to any key feature (as defined in paragraph 84(6) of
Schedule 2) of the Plan shall take effect without the approval of the
Board of Inland Revenue.
22.2 AMENDMENTS TO BE BINDING
Any modification made in accordance with the provisions of this clause 22
shall be binding upon all persons from time to time interested in the Plan
including the Company and any Participating Company.
23 GENERAL PROVISIONS
23.1 COUNTERPARTS
The Trust Deed may be executed in any number of counterparts, and by the
parties on separate counterparts, each of which when so executed and
delivered shall be an original, but all the counterparts will together
constitute one and the same Trust Deed.
23.2 IRREVOCABILITY
Subject to the provisions of the Trust Deed, the trusts hereby declared are
irrevocable.
(18)
EXECUTED by the parties as a deed and delivered on the date first mentioned
above.
SIGNED as a deed by
STARBUCKS CORPORATION
acting by an officer and its secretary:
----------------------------------------
Officer
----------------------------------------
Corporate Secretary
The Seal of YORKSHIRE BUILDING SOCIETY
was hereto affixed in the presence of:
- -------------------------------------
By the authority of the Board of
Directors
SIGNED as a deed by
STARBUCKS COFFEE COMPANY (UK) LIMITED
acting by a director and its secretary/ two directors:
----------------------------------------
Director
----------------------------------------
Director/Secretary
(19)
SCHEDULE
RULES OF THE STARBUCKS UK SHARE INCENTIVE PLAN
1 INTERPRETATION
1.1 In the Rules, unless the context otherwise requires, the following words
and expressions have the following meanings:
ACCUMULATION PERIOD a period determined at the discretion of
the Company, not exceeding 12 months
which must be the same for all
individuals entering into Partnership
Shares Agreements;
APPROPRIATE to confer a beneficial interest in
Matching Shares on a Participant, subject
to the provisions of the Plan, and the
expressions "Appropriation" and
"Appropriated" shall be construed
accordingly;
ASSOCIATE the meaning set out in paragraphs 22, 23
and 24 of Schedule 2;
ASSOCIATED COMPANY in relation to two companies if:
(a) one company has control of the
other; or
(b) both are under the control of the
same person or persons;
and for the purposes of this definition,
"control" has the meaning set out in
section 416(2) to (6) ICTA 1988;
AWARD the award to Participants of Partnership
Shares or Matching Shares in accordance
with the Plan and "Awarded" shall be
construed accordingly;
CAPITAL RECEIPT a receipt by the Trustee of money or
money's worth of the type defined in
section 502 ITEPA 2003;
CLOSE COMPANY the meaning set out in section 414 ICTA
1988 as modified by paragraph 20 of
Schedule 2;
(20)
COMPANY Starbucks Corporation, incorporated under
the laws of the State of Washington,
United States of America;
CONNECTED COMPANY (a) a company which Controls or is
Controlled by the Company or which
is controlled by a company which
also Controls the Company; or
(b) a company which is a member of a
Consortium owning the Company or
which is owned in part by the
Company as a member of the
Consortium;
CONSORTIUM the meaning set out in section 99(3) of
Schedule 2;
CONTROL the meaning set out in section 840 ICTA
1988;
DIRECTORS the board of directors of the Company or
a duly authorised committee thereof;
ELIGIBLE PARTNER (a) an individual who in the case of
Partnership Shares or Matching
Shares:
(i) if there is no Accumulation Period,
at the time the money for the
acquisition of such Partnership
Shares is deducted; and
(ii) if there is an Accumulation Period,
at the time of the first deduction
of money for the acquisition of such
Partnership Shares
in either case:
(aa) is an employee of a
Participating Company;
(ab) has been such an employee (or
has otherwise been an employee
of a Qualifying Company) at all
times during any Qualifying
Period;
(21)
(ac) has earnings in respect of his
office or employment with a
Participating Company which are
(or would be if there were any)
general earnings to which
section 15 or 21 of ITEPA 2003
applies;
(ad) has not either himself or
through any Associate and
whether in either case alone or
together with one or more
Associates has not had within
the preceding 12 months, a
Material Interest in a Close
Company whose shares may be
Appropriated or acquired under
the Plan or a company which has
Control of such a company or is
a member of a Consortium which
owns such a company; and
(ae) does not at the same time
participate in a share
incentive plan approved under
Schedule 2 (other than the
Plan) established by the
Company or a Connected Company
(which for the avoidance of
doubt shall include where an
employee would have
participated but for his
failure to obtain a performance
allowance);
(b) an individual who at the relevant
time satisfies the requirements at
(a) above, excluding (ac), whom the
Company has, in its absolute
discretion, determined should be
included;
EMPLOYEES' SHARE SCHEME the meaning set out in section 743 of the
Companies Act 1985;
EMPLOYER COMPANY the Participating Company which employs
an Eligible Partner or, if a Participant
is no longer an
(22)
Eligible Partner, the company which
employs the Participant (or last employed
the Participant) in Relevant Employment
so long as that company is one to which
PAYE regulations apply at that time;
EXCHANGE RATE for any day means the closing mid-point
spot rate UK Pound against the US Dollar
for that day, as quoted by the Financial
Times newspaper;
FORFEITURE PERIOD the period(s) determined by the Company
pursuant to Rule 9.2.5 or 9.2.6, as
appropriate, provided that the period(s)
shall not exceed 3 years from the
relevant date of Appropriation;
ICTA 1988 the Income and Corporation Taxes Act
1988;
INITIAL MARKET VALUE the Market Value of a Matching Share on
the Matching Shares Appropriation Date;
ITEPA 2003 the Income Tax (Earnings and Pensions)
Act 2003;
MARKET VALUE (a) on any date, (if agreed for the
purposes of the Plan with Inland
Revenue Shares Valuation on or
before that day) the regular trading
session closing price of a Share on
that day as reported by The Nasdaq
Stock Market, Inc. converted into UK
Pounds at the Exchange Rate for that
date; or
(b) if on that date the shares are not
traded on Nasdaq, the market value
of a Share as determined in
accordance with the provisions of
Part VIII TCGA 1992 and paragraph 92
of Schedule 2 and agreed for the
purposes of the Plan with Inland
Revenue Shares Valuation on or
before that day;
MATCHING SHARES Shares entitlement to which is as set out
in Part II which shall:
(23)
(a) be shares of the same class and
carry the same rights as the
Partnership Shares to which they
relate;
(b) be Appropriated on the same day as
the Partnership Shares to which they
relate are acquired; and
(c) be Appropriated to all Participants
on exactly the same basis;
MATCHING SHARES the date on which the Trustee
APPROPRIATION DATE Appropriates an Award of Matching Shares;
MATCHING SHARES HOLDING PERIOD the period beginning on the Matching
Shares Appropriation Date and ending on a
date determined from time to time at the
discretion of the Company, and being not
earlier than the third anniversary nor
later than the fifth anniversary of the
Matching Shares Appropriation Date or, if
earlier, the date on which the
Participant ceases to be in Relevant
Employment, and which period shall be the
same for all Matching Shares comprised in
the same Award and shall not be increased
at any time in respect of Matching Shares
already Appropriated;
MATERIAL INTEREST the meaning set out in paragraphs 19 to
21 of Schedule 2;
PARTICIPANT an Eligible Partner to whom the Trustee
has made an Appropriation or on whose
behalf Partnership Shares have been
acquired or, where the context permits,
an individual who has submitted a duly
completed Partnership Shares Agreement in
accordance with Rule 4.3.5;
PARTICIPATING COMPANY any Subsidiary which is a party to the
Trust Deed or has pursuant to clause 9
executed a deed of adherence and to which
the Plan continues to extend;
(24)
PARTNERSHIP SHARES Shares entitlement to which is as set out
in Part I;
PARTNERSHIP SHARES ACQUISITION the date determined by the Trustee in
DATE accordance with Rule 4.3.4;
PARTNERSHIP SHARES AGREEMENT an agreement issued by the Company under
Rule 4.4;
PARTNERSHIP SHARES CLOSING DATE the date specified in the Partnership
Shares Invitation by which the completed
Partnership Shares Agreement must be
received by the Trustee;
PARTNERSHIP SHARES INVITATION an invitation issued by the Company under
Rule 4;
PARTNERSHIP SHARES MARKET VALUE in the case of a Partnership Shares
Agreement with:
(a) an Accumulation Period, the lower of
the Market Value of a Share on:
(i) the first day of the
Accumulation Period; or
(ii) the Partnership Shares
Acquisition Date;
(b) no Accumulation Period, the Market
Value of a Share on the Partnership
Shares Acquisition Date;
PARTNERSHIP SHARES MONEY the meaning given to that term by Rule
4.5.2;
PLAN the Starbucks UK Share Incentive Plan as
constituted by the Trust Deed and the
Rules in their present form or as amended
from time to time;
PLAN SHARES Partnership Shares and Matching Shares
which have been Appropriated to, or
acquired on behalf of, a Participant or
are held on his behalf by the Trustee;
QUALIFYING COMPANY the meaning set out in paragraph 17 of
Schedule 2;
QUALIFYING CORPORATE BOND the meaning set out in section 117 TCGA
1992;
(25)
QUALIFYING PERIOD a period determined by the Company in
relation to any Award of Shares under the
Plan which may be different for different
Awards provided that:
(a) in the case of Partnership Shares
and Matching Shares where there is
an Accumulation Period it shall not
exceed the period of 6 months before
the beginning of the Accumulation
Period;
(b) in the case of Partnership Shares
and Matching Shares where there is
no Accumulation Period it shall not
exceed the period of 18 months
before the deduction of money for
the acquisition of the Partnership
Shares;
RELEVANT AMOUNT in respect of Partnership Shares, in any
Year of Assessment, the lower of:
(i) L1,500; and
(ii) 10% of Salary
subject in each case to such amendment as
may be made to any one of more of those
limits as contained in ITEPA 2003 from
time to time and where in the same Year
of Assessment an Eligible Partner
participates in one or more other share
incentive plans approved under Schedule 2
and established by the Company or a
Connected Company, any shares acquired
under such plans shall be aggregated with
any Shares acquired under the Plan for
the purposes of determining the Relevant
Amount;
RELEVANT EMPLOYMENT employment by the Company or any
Associated Company of the Company;
RETIREMENT AGE the age of 50;
(26)
RULES these rules as from time to time amended;
SALARY the meaning set out in paragraph 43(4) of
Schedule 2 (subject to the Company
determining that any particular
description of earnings should not be
counted as part of an employee's salary
in accordance with paragraph 46(4A)(b) of
Schedule 2);
SCHEDULE 2 Schedule 2 to ITEPA 2003;
SHARES fully paid shares of common stock of the
Company (or any shares representing the
same) which satisfy the conditions in
paragraphs 26 to 33 inclusive of Schedule
2;
SUBSIDIARY any company over which the Company has
Control;
TCGA 1992 the Taxation of Chargeable Gains Act
1992;
YEAR OF ASSESSMENT a period commencing on 6 April in any
year and ending on 5 April in the
following year.
1.2 In the Plan, unless otherwise specified:
1.2.1 the contents, clause and Rule headings are inserted for ease of
reference only and do not affect the interpretation of the Plan;
1.2.2 references to clauses, Rules, Parts and the Schedule are respectively
to clauses, rules, parts of, and this schedule to the Trust Deed;
1.2.3 save as provided for by law and subject to Rule 25.6, a reference to
writing includes any mode of reproducing words in a legible form and
reduced to paper or electronic format or communication including, for
the avoidance of doubt, correspondence via e-mail;
1.2.4 the singular includes the plural and vice-versa and the masculine
includes the feminine;
1.2.5 a reference to a statutory provision includes any statutory
modification, amendment or re-enactment thereof;
(27)
1.2.6 the Interpretation Act 1978 applies to the Plan in the same way as it
applies to an enactment; and
1.2.7 unless the context otherwise requires, the definitions set out in
clause 1.1 of the Trust Deed shall apply to the Rules.
2 PURPOSE OF PLAN
The purpose of the Plan is to enable Eligible Partners of Participating
Companies to acquire shares in the Company which give them a continuing
stake in the Company.
3 PARTICIPATION ON SAME TERMS
On each occasion when an Award is to be made, every Eligible Partner or
individual who may be an Eligible Partner for the Award in question shall
be invited to participate in an Award on the same terms and those who do
actually participate must do so on the same terms.
(28)
PART I - PARTNERSHIP SHARES
4 PARTNERSHIP SHARES INVITATIONS
4.1 ISSUE OF PARTNERSHIP SHARES INVITATIONS
The Company may in its absolute discretion determine that an Award of
Partnership Shares may be made and, accordingly, issue invitations.
4.2 TIMING OF PARTNERSHIP SHARES INVITATIONS
Where Partnership Shares Invitations are to be issued, this must occur
before the commencement of any relevant Accumulation Period.
4.3 CONTENTS OF PARTNERSHIP SHARES INVITATIONS
Partnership Shares Invitations shall be in such form as the Company may
determine from time to time and shall state:
4.3.1 the Partnership Shares Closing Date;
4.3.2 the maximum Salary deduction permitted under the Partnership Shares
Agreement (being the lesser of the Relevant Amount and such other
amount as the Company may determine and specify);
4.3.3 the minimum Salary deduction permitted determined by the Company
which sum must be no greater than L10 on any occasion (or such other
amount as may be permitted from time to time under paragraph 47 of
Schedule 2);
4.3.4 the expected Partnership Shares Acquisition Date being a date
determined by the Trustee and the Company which:
4.3.4.1 where there is no Accumulation Period, shall be within 30 days
after the deduction from Salary referred to in Rule 4.5.2 is
made;
4.3.4.2 where there is an Accumulation Period shall be not more than
30 days after the end of the Accumulation Period.
4.3.5 that an Eligible Partner or individual who may be an Eligible Partner
who wishes to accept Partnership Shares under the Award shall submit
to the Trustee, prior to the Partnership Shares Closing Date, a duly
completed Partnership Shares Agreement;
(29)
4.3.6 if applicable, the maximum number of Partnership Shares to be made
subject to the Award on this occasion; and
4.3.7 if appropriate, the commencement date (which may not commence later
than the date of the first Salary deduction to be made under the
individual's Partnership Shares Agreement) and length of the
Accumulation Period.
4.4 PARTNERSHIP SHARES AGREEMENT AND PARTNERSHIP SHARES INVITATION
Each Eligible Partner or individual who may be an Eligible Partner for the
Award in question who does not already have in force a Partnership Shares
Agreement in respect of the relevant Award of Partnership Shares shall be
sent a Partnership Shares Agreement in respect of the relevant Award of
Partnership Shares.
4.5 CONTENTS OF PARTNERSHIP SHARES AGREEMENT
A Partnership Shares Agreement shall be in such form as the Company may
determine from time to time and shall:
4.5.1 set out a notice in the form prescribed by regulations pursuant to
paragraph 48 of Schedule 2;
4.5.2 require the individual executing the relevant Partnership Shares
Agreement to state the amount of Salary deduction(s) and not exceeding
the maximum permitted under Rule 4.3.2) which he wishes to allocate
for the purchase of Partnership Shares under the Partnership Shares
Agreement (the "Partnership Shares Money"); and
4.5.3 state the intervals at which such amounts should be deducted; and
4.5.4 state whether any excess amount remaining after the acquisition of
Partnership Shares will be:
4.5.4.1 paid over to the Participant subject to the Trustee complying
with Rule 20; or
4.5.4.2 with the agreement of the Participant, retained by the Trustee
and added to the next Accumulation Period or where there is no
next Accumulation Period, retained by the Trustee and added to
the next Salary deduction; and
(30)
4.5.5 state the commencement date (which may not commence later than the
date of the first Salary deduction to be made under the Eligible
Partner's Partnership Shares Agreement) and length of the Accumulation
Period, if applicable.
4.6 AGREEMENT MAY BE WITHDRAWN
A Partnership Shares Agreement shall take effect in relation to any Award
of Partnership Shares until such time as a Participant notifies the
Employer Company that he no longer wishes to so participate.
4.7 EXCESS SALARY DEDUCTIONS
Any amounts deducted in excess of the amounts permitted must be paid over
to the Participant as soon as practicable.
4.8 SCALING DOWN
If the number of Partnership Shares for which applications have been
received is in excess of any maximum specified in accordance with Rule
4.3.6 the amount of deduction of Partnership Shares Money specified by each
Participant shall be reduced pro rata. For the purpose of this Rule 4.8,
the number of Partnership Shares for which applications have been received
shall be:
4.8.1 where there is not an Accumulation Period, the total amount to be
deducted during the month divided by the Market Value on the first day
of the month; and
4.8.2 where there is an Accumulation Period, the total amount expected to
be deducted during the Accumulation Period (assuming no instructions
are received from Participants under Rule 5) divided by the Market
Value on the first day of the Accumulation Period.
4.9 PARTNERSHIP SHARES MONEY HELD FOR PARTICIPANT
Partnership Shares Money must, subject to Rules 5.4 and 8.2, be:
4.9.1 paid to the Trustee as soon as practicable; and
4.9.2 held by the Trustee on behalf of a Participant with:
4.9.2.1 a person falling within section 840A (1) (b) of ICTA 1988;
4.9.2.2 a building society; or
(31)
4.9.2.3 a firm falling within section 840A(1)(c) of ICTA 1988;
until it is used to acquire Partnership Shares on behalf of the Participant
from whose Salary the Partnership Shares Money has been deducted.
4.10 INTEREST ON PARTNERSHIP SHARES MONEY
The Trustee must account to the Participant from whose Salary the
Partnership Shares Money had been deducted, for any interest received on
Partnership Shares Money held on his behalf. For the avoidance of doubt
there is no obligation on the Trustee to arrange for any Partnership Shares
Money to be deposited in an interest bearing account.
Any Trustee which is a bank or building society shall, notwithstanding any
benefit which may accrue to it as a result, itself be entitled to hold
Partnership Shares Money in a designated account in its capacity as a bank
or building society and not be obliged to account for any resultant profit.
5 INSTRUCTIONS GIVEN DURING ACCUMULATION PERIOD
5.1 VARIATION OF SALARY DEDUCTIONS AND INTERVALS
Subject to Rules 4.3.2, 4.3.3, and 4.3.6, and notwithstanding Rule 4.5.6 a
Participant may, with the prior agreement of the Employer Company, vary the
amount and or the intervals of the Salary deduction authorised under his
Partnership Shares Agreement.
5.2 NOTICE TO SUSPEND SALARY DEDUCTIONS
A Participant may, at any time, direct the Employer Company by notice in
writing to:
5.2.1 suspend the making of Salary deductions; or
5.2.2 recommence the making of Salary deductions
under his Partnership Shares Agreement provided always that:
5.2.3 the Participant may not permit the Employer Company to make
additional Salary deductions to make up for any Salary deductions
which were missed; and
5.2.4 the Participant may only make a direction under Rule 5.2.2 once in
any Accumulation Period.
(32)
5.3 NOTICE TO TERMINATE PARTNERSHIP SHARES AGREEMENT
A Participant may at any time notify the Employer Company in writing that
he wishes to terminate his Partnership Shares Agreement.
5.4 EMPLOYER COMPANY TO GIVE EFFECT TO NOTICES
5.4.1 Where the Employer Company receives a notice to suspend or terminate
deductions under Rule 5.2 or 5.3, it shall (unless a later date is
specified in the notice) within 30 days of receipt of the notice give
effect to the same, and shall:
5.4.1.1 cease all further deductions of Partnership Shares Money under
the Participant's Partnership Shares Agreement;
5.4.1.2 in the case of a notice under Rule 5.3 subject to first
complying with Rule 20 pay over or, as applicable, instruct the
Trustee to pay over to that Participant as soon as practicable
all Salary deductions of Partnership Shares Money that have been
made under his Partnership Shares Agreement.
5.4.2 When the Employer Company or the Trustee, as applicable, receives a
notice to recommence Salary deductions under Rule 5.2, the Employer
Company shall (unless a later date is specified in the notice)
recommence deductions on the date of the first deduction due under the
Partnership Shares Agreement following 30 days after receipt of the
notice.
5.5 PARTNERSHIP SHARES AGREEMENT TO APPLY TO NEW HOLDING
Where during an Accumulation Period a transaction occurs in relation to any
of the Shares to be acquired under a Partnership Shares Agreement which
results in a new holding of shares being equated with the original holding
for the purposes of capital gains tax and the Participant gives his
consent, the Partnership Shares Agreement shall have effect following that
transaction as if it were an agreement for the purchase of shares comprised
in the new holding. In the context of a new holding, any reference in this
Rule 5.5 to shares includes a reference to securities and rights of any
description which form part of the new holding for the purpose of Chapter
II of Part IV TCGA 1992.
(33)
6 ACQUISITION OF PARTNERSHIP SHARES
6.1 ACQUISITION OF SHARES BY TRUSTEE (NO ACCUMULATION PERIOD)
After the deduction of Partnership Shares Money the Trustee shall calculate
the number of Partnership Shares to be acquired on behalf of each
Participant by dividing (as nearly as possible) each Participant's
Partnership Shares Money deducted under his Partnership Shares Agreement by
the Partnership Shares Market Value and shall acquire such Shares on behalf
of Participants within 30 days of such deduction PROVIDED THAT if the
number of Partnership Shares to be acquired would exceed the maximum
specified under Rule 4.3.6, the number of Partnership Shares acquired on
behalf on each Participant shall be reduced proportionately.
6.2 ACQUISITION OF SHARES BY TRUSTEE (WITH ACCUMULATION PERIOD)
6.2.1 After the expiry of the Accumulation Period the Trustee shall
calculate the number of Partnership Shares to be acquired on behalf of
each Participant by dividing (as nearly as possible) each
Participant's aggregate Partnership Shares Money deducted under his
Partnership Shares Agreement during the Accumulation Period (together
with any amount carried forward from a previous Accumulation Period)
by the Partnership Shares Market Value and shall acquire such Shares
on behalf of Participants accordingly PROVIDED THAT if the number of
Partnership Shares to be acquired would exceed the maximum specified
under Rule 4.3.6, the number of Partnership Shares acquired on behalf
on each Participant shall be reduced proportionately.
6.2.2 The Trustee shall within 30 days of the end of the Accumulation
Period acquire the number of Shares determined in accordance with Rule
6.2.1 which shall be held on behalf of the respective Participant as
Partnership Shares.
6.3 NOTIFICATION OF ACQUISITION TO PARTICIPANTS
As soon as practicable after the Partnership Shares Acquisition Date, the
Trustee shall notify each Participant on whose behalf Partnership Shares
have been acquired of the:
6.3.1 number and description of Partnership Shares acquired on his behalf;
6.3.2 Partnership Shares Acquisition Date;
6.3.3 aggregate amount of the Participant's Partnership Shares Money
applied by the Trustee in acquiring the Partnership Shares; and
(34)
6.3.4 Market Value of Partnership Shares on the Partnership Shares
Acquisition Date.
6.4 SALARY DEDUCTIONS NOT INVESTED IN PARTNERSHIP SHARES
Any Partnership Shares Money not used to acquire Partnership Shares shall
be dealt with in accordance with Rule 4.5.4.
7 TRANSFER OF PARTNERSHIP SHARES BY PARTICIPANT
7.1 PARTICIPANTS MAY REQUEST TRANSFER OF PARTNERSHIP SHARES
A Participant may, at any time after the Partnership Shares Acquisition
Date, direct the Trustee by notice in writing to:
7.1.1 transfer his Partnership Shares to the Participant; or
7.1.2 transfer his Partnership Shares to some other person named by the
Participant; or
7.1.3 dispose of those Partnership Shares by way of sale and to account for
the proceeds to the Participant or some other person named by the
Participant.
7.2 TRUSTEE TO COMPLY WITH REQUEST
As soon as reasonably practicable, and in any event within 30 days after
receipt of the notice, the Trustee shall comply with the instructions set
out in such notice provided always that it shall first comply with Rules 20
and 21.
8 CESSATION OF RELEVANT EMPLOYMENT
8.1 TRUSTEE TO BE NOTIFIED OF CESSATION OF RELEVANT EMPLOYMENT
If a Participant ceases to be in Relevant Employment then the Employer
Company shall within 14 days inform the Trustee of such cessation.
8.2 CESSATION OF RELEVANT EMPLOYMENT PRIOR TO PARTNERSHIP SHARES ACQUISITION
DATE
8.2.1 Where there is no Accumulation Period and a Participant ceases to be
in Relevant Employment before the Partnership Shares Acquisition Date
but after the deduction of Partnership Shares Money he shall be
treated as ceasing to be in Relevant Employment immediately after his
Partnership Shares are awarded to him.
(35)
8.2.2 Where there is an Accumulation Period and a Participant ceases to be
in Relevant Employment during the Accumulation Period the Employer
Company shall, subject to first complying with Rule 20, pay over to
that Participant as soon as reasonably practicable all deductions of
Partnership Shares Money that have been made under his Partnership
Shares Agreement.
8.2.3 Where there is an Accumulation Period and a Participant ceases to be
in Relevant Employment after the final deduction of Partnership Shares
Money and before the Partnership Shares Acquisition Date he shall be
treated as ceasing to be in Relevant Employment immediately after his
Partnership Shares are awarded to him.
8.3 TRANSFER OF PARTNERSHIP SHARES ON CESSATION OF RELEVANT EMPLOYMENT
Where the Trustee receives a notification under Rule 8.1 then as soon as
reasonably practicable after the receipt of such notification and in any
event within 30 days after the cessation of the Relevant Employment the
Trustee shall transfer the Partnership Shares to the Participant unless
otherwise directed by him in writing prior to the transfer provided always
that the Trustee shall first comply with Rule 21.
(36)
PART II - MATCHING SHARES
9 NOTIFICATION OF MATCHING SHARES
9.1 RELATIONSHIP TO PARTNERSHIP SHARES
Where the Company has exercised its discretion under Rule 4.1 it may in its
absolute discretion also determine that an Appropriation of Matching Shares
shall be made to those Participants who enter into a Partnership Shares
Agreement.
9.2 ADDITIONAL CONTENTS OF PARTNERSHIP SHARES AGREEMENT
Where the Company exercise its discretion under Rule 9.1 then in addition
to the requirements set out in Rule 4.5 each Partnership Shares Agreement
shall state:
9.2.1 the expected Matching Shares Appropriation Date (which shall be the
same as the Partnership Shares Acquisition Date);
9.2.2 the ratio of Matching Shares to Partnership Shares for this Award of
Partnership Shares which:
9.2.2.1 shall not exceed a maximum of 3 Matching Shares for every 17
Partnership Shares acquired on behalf of the Participant; and
9.2.2.2 shall be the same ratio for all Participants;
9.2.3 the circumstances and the manner in which the ratio may be changed by
the Company, and if the Company decides to alter the ratio of Matching
Shares to Partnership Shares prior to the Partnership Shares
Acquisition Date it shall notify each Participant affected prior to
the Partnership Shares Acquisition Date;
9.2.4 the Matching Shares Holding Period;
9.2.5 the Forfeiture Period applicable in the event of a transfer of
Partnership Shares pursuant to Rule 7;
9.2.6 that (as determined at the discretion of the Company) the provisions
of either Rules 12.3 or 12.4 shall apply to the Award and, if Rule
12.4 applies, shall state what the applicable Forfeiture Period shall
be;
9.2.7 such additional information not inconsistent with the Rules and the
Trust Deed as the Company may from time to time determine.
(37)
10 APPROPRIATION OF MATCHING SHARES
10.1 DETERMINATION OF NUMBER OF MATCHING SHARES
At the same time as the Trustee determines the number of Partnership Shares
to be acquired pursuant to Rule 6.1 or 6.2 it shall additionally determine
the number of Matching Shares to be Appropriated to each Participant.
10.2 APPROPRIATION OF MATCHING SHARES
On the Matching Shares Appropriation Date the Trustee shall Appropriate to
each Participant the number of Matching Shares notified to it under Rule
10.1.
10.3 NOTIFICATION OF APPROPRIATION TO PARTICIPANTS
At the same time as making a notification pursuant to Rule 6.3 the Trustee
shall notify each Participant to whom Matching Shares have been
Appropriated of the:
10.3.1 number and description of the Matching Shares Appropriated to him;
10.3.2 Matching Shares Appropriation Date;
10.3.3 Initial Market Value; and
10.3.4 Matching Shares Holding Period.
11 RESTRICTIONS ON DEALINGS IN, AND PERMITTED TRANSFERS OF, MATCHING SHARES
11.1 RESTRICTIONS ON DISPOSALS BY PARTICIPANTS
Subject to Rules 14 and 21 during the Matching Shares Holding Period a
Participant shall:
11.1.1 permit the Trustee to hold his Matching Shares; and
11.1.2 not assign, charge or otherwise dispose of his beneficial interest
in his Matching Shares.
(38)
11.2 RESTRICTIONS ON DISPOSALS BY TRUSTEE
Subject to Rules 12, 14 and 21 and paragraph 90(5) of Schedule 2 the
Trustee shall not:
11.2.1 dispose of any Matching Shares, whether by transfer to the
Participant or otherwise, during the Matching Shares Holding Period;
11.2.2 dispose of any Matching Shares after the Matching Shares Holding
Period except in accordance with a direction given by or on behalf of
the Participant; and
11.2.3 deal with any right conferred in respect of a Participant's Matching
Shares to be allotted other shares, securities or other rights except
pursuant to a direction given by or on behalf of the Participant or
any person in whom the beneficial interest in his Matching Shares is
for the time being vested.
11.3 TRANSFER OF MATCHING SHARES AFTER MATCHING SHARES HOLDING PERIOD
11.3.1 A Participant may, at any time after the Matching Shares Holding
Period direct the Trustee by notice in writing to:
11.3.1.1 transfer the Participant's Matching Shares to the
Participant; or
11.3.1.2 transfer the Matching Shares to some other person named by
the Participant; or
11.3.1.3 dispose of the Matching Shares by way of sale for the best
consideration in money that can reasonably be obtained at the
time of sale and to account for the proceeds to the Participant
or some other person named by the Participant.
11.3.2 Within 30 days after receipt of a notice referred to in Rule 11.3.1
the Trustee shall comply with the instructions set out in such notice
12 CESSATION OF RELEVANT EMPLOYMENT AND EARLY WITHDRAWAL OF PARTNERSHIP SHARES
12.1 TRUSTEE TO BE NOTIFIED OF CESSATION OF RELEVANT EMPLOYMENT
If a Participant ceases to be in Relevant Employment then the Employer
Company shall within 14 days inform the Trustee of such cessation and
whether the provisions of Rule 12.3 or 12.4 apply.
(39)
12.2 EARLY WITHDRAWAL OF PARTNERSHIP SHARES
Where the Trustee receives a notice under Rule 7.1 before the expiry of the
applicable Forfeiture Period then subject to Rules 12.5 and 12.6 the
Participant's beneficial entitlement to his Matching Shares (awarded in
respect of the Partnership Shares which are being withdrawn) shall lapse
immediately and he shall cease to have any rights to such Matching Shares.
12.3 EARLY TRANSFER OF MATCHING SHARES
Where the Trustee has been notified by the Employer Company that this Rule
12.3 applies then as soon as reasonably practicable after the receipt of
such notification and in any event within 30 days after the cessation of
the Relevant Employment the Trustee shall transfer the Matching Shares to
the Participant or as directed by him in writing prior to the transfer
provided always that the Trustee shall first comply with Rule 21.
12.4 FORFEITURE OF MATCHING SHARES
Where the Trustee has been notified by the Employer Company that this Rule
12.4 applies then subject to Rules 12.5 and 12.6 the Participant's
beneficial entitlement to his Matching Shares shall lapse immediately on
his ceasing to be in Relevant Employment before the end of the Forfeiture
Period and he shall cease to have any rights to such Matching Shares.
12.5 INJURY, DISABILITY, REDUNDANCY, RETIREMENT ETC
Notwithstanding Rule 12.4 if a Participant ceases to be in Relevant
Employment by reason of:
12.5.1 injury or disability;
12.5.2 redundancy within the meaning of the Employment Rights Act 1996 or
the Employment Rights (Northern Ireland) Order 1996;
12.5.3 a transfer of employment which is subject to the Transfer of
Undertaking (Protection of Employment) Regulations 1981;
12.5.4 a change of Control or other circumstances giving rise to the
Participant's employing company ceasing to be an Associated Company of
the Company or any Participating Company;
(40)
12.5.5 retirement on or after reaching Retirement Age;
then the Trustee shall act in accordance with Rule 12.3.
12.6 DEATH
If a Participant ceases to be in Relevant Employment by reason of his
death, the Trustee shall act in accordance with Rule 13.5.
(41)
PART III - GENERAL REQUIREMENTS
13 REQUIREMENTS GENERALLY APPLICABLE TO PLAN SHARES
13.1 PARTICIPANTS MAY ELECT NOT TO PARTICIPATE
Notwithstanding any other Rule, a Participant may direct that Shares are
not to be Appropriated to him or acquired on his behalf, by giving written
notice to the Employer Company before the relevant Appropriation date or
acquisition date.
13.2 INDIVIDUALS ELIGIBLE FOR APPROPRIATION
No Appropriation or acquisition shall be made to or on behalf of an
individual who is not an Eligible Partner.
13.3 SHARES NOT APPROPRIATED OR FORFEITED
Shares which are not Appropriated nor acquired on behalf of the Participant
or Matching Shares which have been forfeited under the Rules shall, on the
instructions of the Company, be:
13.3.1 returned by the Trustee to the Company (or the Company's nominee or
agent); or
13.3.2 sold and the proceeds used in accordance with the provisions of
clause 4 of the Trust Deed.
13.4 SHARES CEASING TO QUALIFY
If Shares which are held by the Trustee for the purposes of the Plan cease
to be Shares, they shall not be used for the purposes of the Plan.
13.5 DEATH OF PARTICIPANT
13.5.1 Following the death of a Participant, the Trustee shall, as soon as
practicable after death, transfer the Participant's Plan Shares to or
to the order of his legal personal representatives.
13.5.2 All references in the Plan to a Participant shall, where the context
requires, be references to the legal personal representative of the
Participant.
(42)
13.6 FUNDS TO BE PROVIDED BY PARTICIPATING COMPANIES
13.6.1 If the Company directs that the Trustee shall acquire Matching
Shares by purchase, each relevant Participating Company shall pay to
the Trustee the monies that are required for the Trustee to purchase
the number of Shares to be Appropriated to that Participating
Company's Participants as Matching Shares; and
13.6.2 the Trustee shall, if so directed by the Company, acquire by
purchase Shares at any time using monies paid or loaned to it by
Participating Companies for future Appropriations of Shares to
Eligible Partners.
13.7 SHARES PURCHASED OFF MARKET BY TRUSTEE
Where the Trustee is instructed by the Company to purchase Shares otherwise
than through The Nasdaq Stock Market, Inc. the Trustee shall not purchase
the Shares for a price in excess of that for which, in the opinion of the
Company's brokers, it could purchase those Shares through The Nasdaq Stock
Market, Inc.
13.8 SUBSCRIPTION PRICE
Where Partnership Shares are subscribed for by the Trustee the subscription
price for each Share shall be the higher of the:
13.8.1 Partnership Shares Market Value; or
13.8.2 par value of a Share.
Upon the Trustee subscribing for Partnership Shares, Matching Shares will
be issued to the Trustee for nil additional consideration.
13.9 RIGHTS ATTACHING TO SUBSCRIBED SHARES
Shares acquired by the Trustee by subscription shall, as to voting,
dividend, transfer and other rights, including those arising on a
liquidation of the Company, rank equally in all respects and as one class
with other issued shares of the same class at the date of subscription save
as regards any rights attaching to such Shares by reference to a record
date prior to the date of such subscription or any permitted restriction
under Schedule 2.
13.10 PROPORTIONATE APPORTIONMENT OF SHARES WITH DIFFERENT RIGHTS
If the Shares to be Appropriated to, or acquired on behalf of each
Participant, do not carry
(43)
the same rights as to dividends or otherwise, the shares appropriated to or
acquired on behalf of each Participant shall (as nearly as possible)
contain the same proportions of Shares with different rights.
13.11 FOREIGN DIVIDENDS
Where any foreign cash dividend is received in respect of Plan Shares held
on behalf of a Participant, the Trustee shall give him notice of the amount
of any foreign tax deducted from the dividend before it was paid.
13.12 TIMING OF CONTRIBUTIONS TO TRUSTEE
Monies to be paid by the Participating Companies to the Trustee for the
purchase or subscription of Shares in respect of an Appropriation shall be
paid not later than one week immediately prior to such relevant
Appropriation date.
14 PERMITTED DEALINGS IN PLAN SHARES
A Participant shall be entitled at any time to direct the Trustee to:
14.1.1 accept an offer for any of his Plan Shares if the acceptance will
result in a new holding being equated with the original shares for the
purposes of capital gains tax; or
14.1.2 accept an offer of a Qualifying Corporate Bond, whether alone or
with cash or other assets or both, for his Plan Shares if the offer
forms part of a general offer as referred in Rule 14.1.3; or
14.1.3 accept an offer of cash, with or without other assets, for his Plan
Shares if the offer forms part of a general offer which is made to
holders of shares of the same class as his Plan Shares or of shares in
the Company and which is made in the first instance on a condition
such that if it is satisfied the person making the offer will have
control of the Company within the meaning of section 416 of ICTA 1988;
or
14.1.4 agree a transaction affecting his Plan Shares, or such of them as
are of a particular class, if the transaction would be entered into
pursuant to a compromise, arrangement or scheme applicable to or
affecting:
14.1.4.1 all the ordinary share capital of the Company or, as the case
may be, all the shares of the class in question; or
(44)
14.1.4.2 all the shares, or all the shares of the class in question,
which are held by a class of shareholder identified otherwise
than by reference to their employment or their participation in
the Plan or any other approved share incentive plan.
15 RECEIPTS BY TRUSTEE
Subject to Rule 20, the Trustee shall pay or transfer to a Participant any
money or money's worth it receives in respect of, or by reference to, the
Participant's Plan Shares unless it is a Capital Receipt which consists of
a new holding referred to in Rule 17, provided that the Trustee shall not
distribute any Capital Receipt to a Participant if the amount payable to
that Participant would be less than L3.
16 EXERCISE OF VOTING RIGHTS ATTACHING TO PLAN SHARES
16.1 TRUSTEE TO ACT IN ACCORDANCE WITH DIRECTIONS GIVEN BY PARTICIPANTS
In the event of a general meeting of the Company or any separate general
meeting of the holders of shares which include Plan Shares the Trustee
shall act in accordance with any directions given by a Participant or other
person in whom the beneficial interest in Plan Shares is for the time being
vested in relation to their Plan Shares. In the absence of any such
directions the Trustee need not take any action.
16.2 PARTICIPANT TO INSTRUCT TRUSTEE HOW TO VOTE
Following receipt of any directions given pursuant to Rule 16.1:
16.2.1 the Trustee shall not be obliged to attend the general meeting and
may exercise the voting rights either personally or by proxy;
16.2.2 in the case of "any other business" at an annual general meeting of
the Company, the Trustee shall be entitled to vote (or refrain from
voting) as it thinks fit; and
16.2.3 on a poll, the Trustee shall vote or lodge proxy cards only in
accordance with the directions of each Participant, which directions
must have been returned to the Trustee in accordance with the
instructions accompanying the notification. In the absence of any such
direction the Trustee shall abstain from voting.
16.3 NOTIFICATION OF PARTICIPANTS' DIRECTIONS TO TRUSTEE TO BE IN WRITING
Any direction given by a Participant to the Trustee pursuant to Rule 16.1
shall be in writing under the hand of the Participant and shall not be
binding upon the Trustee unless
(45)
it has been deposited at the registered office of the Company not less than
96 hours before the time for the holding of the meeting.
17 COMPANY RECONSTRUCTIONS
17.1 NEW HOLDINGS OF SHARES
Subject to Rule 17.2, where there occurs in relation to a Participant's
Plan Shares a company reconstruction which results in a new holding, or
would result in a new holding were it not for the fact that the new holding
consists of or includes a Qualifying Corporate Bond:
17.1.1 the company reconstruction shall be treated as not involving a
disposal of the Plan Shares comprised in the original holding;
17.1.2 references in the Rules to a Participant's Plan Shares shall be
construed, after the date of the company reconstruction, as being
references to the shares comprised in the new holding;
17.1.3 such new holding shall be deemed to have been Appropriated to or
acquired on behalf of the Participant on the date the original holding
was Appropriated to or acquired by him and shall be held by the
Trustee on the same terms.
17.2 MEANING OF "NEW HOLDING"
For the purpose of Rule 17.1:
17.2.1 in the context of a new holding, any reference in this Rule 17 to
shares includes a reference to securities and rights of any
description which form part of the new holding for the purpose of
Chapter II of Part IV TCGA 1992; and
17.2.2 an issue of shares of any of the following descriptions (in respect
of which a charge to income tax arises) made as part of a company
reconstruction shall not be treated as forming part of a new holding:
17.2.2.1 redeemable shares or securities issued as mentioned in
section 209(2)(c) ICTA 1988;
17.2.2.2 share capital issued in circumstances such that section
210(1) ICTA 1988 applies;
17.2.2.3 share capital to which section 249 ICTA 1988 applies.
(46)
18 RIGHTS ISSUES
18.1 APPLICATION OF RULE
This Rule 18 applies to rights attaching to a Participant's Plan Shares to
be allotted, on payment, other shares, securities or rights of any
description in the same Company (together referred to as "Rights").
18.2 TRUSTEE TO PROVIDE INFORMATION TO PARTICIPANTS
The Trustee shall inform each Participant of any Rights arising in respect
of Plan Shares and shall either send the Participant a copy of the document
relating to the Rights or sufficient details to enable the Participant to
act in accordance with Rule 18.3.
18.3 PARTICIPANTS TO GIVE WRITTEN DIRECTIONS TO TRUSTEE
The Trustee shall deal with the Rights only pursuant to a written direction
given by, or on behalf of, the Participant or any person in whom the
beneficial interest in the Plan Shares is for the time being vested. Such
written direction must be received by the Trustee before the expiry of 5
days before the closing date for acceptance of the Rights offer or within
such other time limit set at the absolute discretion of the Trustee, and
may direct the Trustee to:
18.3.1 take up all or part of the Rights provided that such instruction is
accompanied by payment in cash of the amount necessary to exercise
such rights; or
18.3.2 sell all of the Rights; or
18.3.3 sell such part of the Rights as enables the Trustee to use the
proceeds of sale to exercise entitlement to the remaining Rights of
the Participant.
18.4 CASH AMOUNTS ARISING TO BE DEALT WITH BY TRUSTEE
Any cash arising from the disposal of the Rights (except insofar as it is
used to exercise such Rights in accordance with Rule 18.3.3) shall be dealt
with by the Trustee in accordance with Rule 15.
(47)
18.5 FAILURE BY PARTICIPANT TO GIVE ANY DIRECTION
If a Participant fails to give any direction under Rule 18.3, or has not
otherwise authorised the Trustee, or fails to pay any appropriate amount of
cash, then the Trustee shall take no action in respect of the Rights
associated with that Participant's Plan Shares.
19 CHANGES IN CAPITALIZATION
In the event of reorganization, recapitalization, stock split (which may be
effected by way of a stock dividend of additional shares of the Company's
common stock), consolidation, offerings of rights, or any other change in
the capital structure of the Company before the Partnership Shares
Acquisition Date, the Directors shall make whatever adjustments are
appropriate in the number, kind, and the price of the Shares or shares that
are available for purchase under the Plan, and in the number of Shares or
shares that a Participant is entitled to purchase under the Plan, provided
that any issue of shares including any stock dividends as referred to
above, is not an excluded issue of shares as defined in paragraph 86(4) of
Schedule 2.
20 DUTY TO ACCOUNT FOR PAYE ON CASH AMOUNTS
20.1 TRUSTEE TO MAKE PAYE DEDUCTIONS
The Trustee shall withhold from:
20.1.1 a Capital Receipt referred to in Rule 15;
20.1.2 any monies returned to individuals under Rules 4 and 6; and
20.1.3 the proceeds of a disposal of Plan Shares by the Trustee in
accordance with a direction from a Participant (except in so far as
the proceeds are used to take up Rights in accordance with Rule
18.3.3)
an amount equal to any income tax and employee's national insurance
contributions chargeable on such sum for which the Employer Company or the
Trustee is required to make a deduction under the PAYE system.
20.2 TRUSTEE TO DEAL WITH PAYE DEDUCTIONS
20.2.1 The Trustee shall if it is responsible for operating PAYE in
relation to such sum, retain it, or otherwise pay such sum as is
referred to in Rule 20.1 to one or more
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Employer Companies in proportion to their respective obligations to
operate PAYE in relation to such sum.
20.2.2 If there is no Employer Company for the purposes of Rule 20.2.1 the
Trustee shall deduct income tax at the basic rate for the time being
in force as if the Participant were a former employee of the Trustee.
21 DUTY TO ACCOUNT FOR PAYE ON TRANSFERS OF ASSETS
21.1 TRUSTEE TO MAKE PAYE DEDUCTIONS
Where under any Rule Plan Shares cease to be subject to the Plan and in
relation to:
21.1.1 Partnership Shares it is prior to the fifth anniversary of the
Partnership Shares Acquisition Date; or
21.1.2 Matching Shares it is prior to the fifth anniversary of the Matching
Shares Appropriation Date
the Trustee shall unless otherwise provided with funds from the Participant
to meet any liability for income tax and/or employee's national insurance
contributions, dispose of a sufficient number of the Participant's Plan
Shares (for the best consideration in money that can reasonably be obtained
at the time of sale), the proceeds of which shall (as far as possible) be
equal to any income tax and/or employees' national insurance contributions
chargeable on the Plan Shares to be transferred and for which the Trustee
or an Employer Company is required to make a PAYE deduction.
21.2 TRUSTEE TO DEAL WITH PAYE DEDUCTIONS
The Trustee and/or an Employer Company shall account to the Board of Inland
Revenue for any income tax and/or employees' national insurance
contributions referred to in Rule 21.1 and shall pay over to the
Participant the difference (if any) between the proceeds from the disposal
of his Plan Shares under Rule 21.1 and the amount due.
22 APPORTIONMENT OF CAPITAL RECEIPTS
22.1 TREATMENT OF CAPITAL RECEIPTS
If the Trustee receives any Capital Receipt referred in Rule 15 in respect
of, or by reference to, any Plan Shares held on behalf of more than one
Participant, then, if and to the extent that such Capital Receipt cannot be
precisely divided between such Participants in the appropriate proportions
to the extent that it is:
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22.1.1 money's worth, the Trustee shall sell it for the best possible
consideration in money that can reasonably be obtained and shall
divide the proceeds of sale (after deducting any expenses of sale and
any taxation which may be payable by the Trustee) among the
Participants in question; and
22.1.2 money, the Trustee's obligations under this Rule 22 shall be deemed
to be discharged if the Trustee pays to each Participant the
appropriate amount, rounded down to the nearest penny.
22.2 TRUSTEE TO INFORM PARTICIPANTS
The Trustee shall inform each Participant in respect of whose Plan Shares
the Capital Receipt was received of the treatment thereof for income tax
purposes.
23 TERMINATION OF PLAN
23.1 COMPANY MAY TERMINATE PLAN
The Company may at any time decide to terminate the Plan and if it does so
must issue a plan termination notice copies of which shall be given without
delay to:
23.1.1 Her Majesty's Revenue & Customs;
23.1.2 the Trustee; and
23.1.3 each Participant.
23.2 CONSEQUENCES OF TERMINATION OF PLAN
If the Company issues a plan termination notice in accordance with Rule
23.1:
23.2.1 no further Awards may be made under the Plan;
23.2.2 the Trustee shall remove any Plan Shares from the Plan in accordance
with paragraph 90 of Schedule 2; and
23.2.3 any Partnership Shares Money held on behalf of a Participant must be
paid to him as soon as practicable thereafter.
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23.3 INLAND REVENUE WITHDRAWAL OF PLAN APPROVAL
If Inland Revenue approval of the Plan is withdrawn any Partnership Shares
Money held on behalf of a Participant must be paid to him as soon as
practicable thereafter.
24 SHARES FROM QUALIFYING SHARE OWNERSHIP TRUSTS
Where Shares are transferred to the Trustee in accordance with paragraph 78
of Schedule 2, it shall award such Shares only as Matching Shares, and in
priority to other available Shares.
25 NOTICES
25.1 NOTICE BY COMPANY, EMPLOYER COMPANY, DIRECTORS OR TRUSTEE
Save as provided for by law and subject to Rule 25.6, any notice, document
or other communication given by, or on behalf of the Company, an Employer
Company, the Directors or the Trustee to any person in connection with the
Plan shall be deemed to have been duly given if delivered to him by hand or
sent by e-mail or fax to him at his place of work if he is employed by an
Employer Company, or sent by e-mail to such e-mail address as may be
specified by him from time to time or through the post in a pre-paid
envelope to the postal address last known to the Company to be his address
and, if so sent, shall be deemed to have been duly given on the date of
sending or posting.
25.2 DECEASED PARTICIPANT
Save as provided for by law and subject to Rule 25.6, any notice, document
or other communication given to a Participant shall be deemed to have been
duly given notwithstanding that such person is then deceased (and whether
or not the Company or Trustee has notice of his death) except where his
personal representatives have established their title to the satisfaction
of the Company or Trustee as appropriate and supplied to the Company and
the Trustee an e-mail or postal address to which notices, documents and
other communications are to be sent.
25.3 NOTICE TO COMPANY, EMPLOYER COMPANY, DIRECTORS OR TRUSTEE
Save as provided for by law and subject to Rule 25.6, any notice, document
or other communication given to the Company, the Directors, an Employer
Company or the Trustee in connection with the Plan shall be delivered by
hand or sent by e-mail, fax or post to the company secretary at such
company's registered office or such other e-mail or postal address as may
from time to time be notified to individuals or Participants but shall not
in any event be deemed to be duly given unless and until it is actually
received at the
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registered office or such e-mail or postal address and shall be deemed to
have been duly given on the date of such receipt.
25.4 DISTRIBUTION OF COMPANY DOCUMENTATION
If any annual or interim report, notice of meeting, circular, letter of
offer or other documentation (excepting a dividend warrant or a document of
title to shares, securities or rights) is sent to the Trustee relating to
any Plan Shares, the Company shall, as soon as reasonably practicable,
send, or procure the sending of, a copy of such document to each
Participant on behalf of whom such Plan Shares are held. For the avoidance
of doubt, the Trustee shall have no obligation to send a copy of any such
document to any Participant.
25.5 NOTIFICATION OF LIABILITY TO INCOME TAX
Where a Participant has become liable to income tax under any relevant
provision of ITEPA 2003 or is liable to income tax chargeable under
Schedule D Case IV or Schedule F of ICTA 1988, the Trustee shall, as soon
as reasonably practicable, inform the Participant of any fact material to
determining that liability.
25.6 EXCLUSION OF ELECTRONIC COMMUNICATIONS IN CERTAIN CIRCUMSTANCES
For the avoidance of doubt, any notice, document or other communication
given by or on behalf of the Company, the Directors, an Employer Company or
the Trustee to an individual may not be sent by electronic communication if
such notice, document, or other communication requires a deduction to be
made from wages, including, but not limited to, deduction from wages made
pursuant to the Partnership Shares Agreement or the provisions of Rules 5.1
and 5.2.2.
26 FRACTIONAL ENTITLEMENTS
26.1 If, on a company reconstruction, the Trustee receives a share or other
security fractions of which would be treated as comprised in two or more
Participants' Plan Shares:
26.1.1 it shall not form part of any new holding for the purpose of Rule
17;
26.1.2 Rule 22 shall apply to it.
27 PROTECTION OF TRUSTEE
Any sale by the Trustee of shares, securities or rights which is effected
through a member of The Nasdaq Stock Market, Inc. acting in the ordinary
course of his business shall be
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presumed to have been made for the best consideration that could reasonably
be obtained at the time of sale.
28 RELATIONSHIP OF PLAN TO CONTRACT OF EMPLOYMENT
28.1 Notwithstanding any other provision of this Plan:
28.1.1 the Plan or benefits available under the Plan shall not form part of
any contract of employment between any Employer Company and an
Eligible Partner, or Beneficiary;
28.1.2 unless expressly so provided in his contract of employment, an
Eligible Partner, or Beneficiary has no right to an Appropriation;
28.1.3 the benefit to an Eligible Partner, or Beneficiary of participation
in the Plan shall not form any part of his remuneration or count as
his remuneration for any purpose and shall not be pensionable; and
28.1.4 if an Eligible Partner, or Beneficiary ceases to have a Relevant
Employment, he shall not be entitled to compensation for the loss of
any right or benefit or prospective right or benefit under the Plan
whether by way of damages for unfair dismissal, wrongful dismissal,
breach of contract or otherwise.
29 ALTERATIONS
No modification, alteration, or amendment to the Rules shall be made except
in accordance with clause 22 of the Trust Deed.
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