EXHIBIT 4.2
RULES OF THE
BOC GROUP
LONG TERM INCENTIVE PLAN
Adopted by the Company on 17 January 2003
Deloitte & Touche
180 Strand
London
WC2R 1BL
Tel: 020 7438 3000
RULES OF THE BOC GROUP
LONG TERM INCENTIVE PLAN
1. DEFINITIONS & INTERPRETATION
1.1 In this Plan, the following words and expressions shall have the meanings
set out below:
American Depository Shares a receipt or certificate representing an
interest in Shares in the Company and the
term "ADS" shall be construed accordingly;
Award an award under this Plan which is either
subsisting or is proposed to be granted and
which shall be:
(A) a Nil Cost Option; or
(B) a Conditional Award; or
(C) in such other form as the Grantor
shall determine;
Award Date the date the Grantor grants an Award under
Rule 2.1;
Board the board of directors of the Company from
time to time or a duly authorised committee
of it;
Company The BOC Group plc (registered no. 22096);
Conditional Award subject to Rule 2.10, a conditional right to
acquire Shares, cash or other assets at no
cost to the Participant;
Control the meaning given by Section 840 of the
Taxes Act;
Dealing Day any day on which the London Stock Exchange
is open for the transaction of business;
Discretionary Share Plan an Employees' Share Scheme in which
participation is solely at the discretion of
the Board;
Eligible Employee any person who at the Award Date is an
employee or an executive director of a
Participating Company;
Employees' Share Scheme the meaning given by Section 743 of the
Companies Act 1985;
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Exchange Period six months or such other period as the Board
shall determine;
Exercise Date the date on which a Nil Cost Option is
exercised as described in Rule 11.3;
Grantor the Board (acting on behalf of the Company)
or the Trustees acting on the recommendation
or with the consent of the Board (as the
case may be);
Grant Period the period of 42 days commencing on any of
the following:
(A) the date on which the Plan is
adopted by the Company;
(B) the day after the Company makes an
announcement of its results for any
period;
(C) any day on which changes to the
legislation affecting Employees'
Share Schemes is proposed or made;
(D) the date of commencement of an
Eligible Employee's employment with
a Participating Company, but only in
respect of that Eligible Employee;
or
(E) any day on which the Board resolves
that exceptional circumstances exist
which justify the grant of options
provided that if the Grantor cannot grant
Awards due to primary or secondary
legislation, regulation or government
directive or due to any code adopted by the
Company (including by reason of its share
capital being listed on the London Stock
Exchange) the relevant Grant Period shall be
42 days commencing on the day after the
restriction is lifted;
Group Member (A) a Participating Company; and
(B) the Company's holding company
(within the meaning of Section 736
of the Companies Act 1985) or a
Subsidiary of the Company or the
Company's holding company;
London Stock Exchange the stock exchange operated by the London
Stock Exchange plc or any successor
operating the same;
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Market Value (i) in relation to a Share on any day
its closing middle market quotation
(as derived from the Daily Official
List) for the immediately preceding
Dealing Day;
(ii) in relation to an ADS on any day
means an amount equal to half-way
between the high and low sales
prices of ADSs recorded on the New
York Stock Exchange on the
applicable valuation date;
Nil Cost Option subject to Rule 2.10, a right to acquire
Shares, cash or other assets with a nil
exercise price;
Participant any person to whom an Award has been granted
or (where the context so admits) his
personal representatives;
Participating Company (iii) the Company; and
(iv) any other company which is under the
Control of the Company and is a
Subsidiary of the Company except one
which the Board has designated shall
not be a Participating Company; and
(v) if so designated by the Grantor, any
company owned by the Company jointly
with another person together with
any Subsidiary of such company;
Performance Conditions a condition or conditions imposed on the
vesting of an Award pursuant to Rule 2.2;
Performance Period a period of three years or such other period
as the Grantor shall determine on or prior
to the Award Date;
Plan The BOC Group Long Term Incentive Plan as
from time to time amended in accordance with
the Rules;
Rules the rules of the Plan as amended from time
to time;
Share a fully paid ordinary share in the capital
of the Company;
Subsidiary the meaning given by Section 736 of the
Companies Act 1985;
Trustees the trustee or trustees of the time being of
any employee benefit trust established for
the benefit of all or substantially all of
the Eligible Employees;
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Vest in relation to any Conditional Award, the
point at which a Participant first becomes
entitled to call for the Shares, cash or
other assets comprised in the Award and in
relation to a Nil Cost Option, the point at
which that Nil Cost Option first becomes
exercisable and "Vesting" and "Vested" shall
be construed accordingly;
Vesting Date the date on which an Award Vests.
1.2 Where appropriate, references to an Act of Parliament shall include
reference to any substantially equivalent foreign legislation and
references to any statutory provisions are to those provisions as amended,
extended or re-enacted from time to time and shall include any regulations
or other subordinate legislation made under them.
1.3 The Interpretation Act 1978 shall apply to these Rules on the same basis
as if they were an Act of Parliament.
1.4 The headings in the Rules are for the sake of convenience only and should
be ignored when construing the rules.
2. GRANT OF AWARDS
2.1 During a Grant Period, the Grantor may grant to any Eligible Employee an
Award over such number of Shares and in such form as it may determine.
2.2 The Grantor will make the Vesting of an Award conditional on satisfying
one or more conditions. Such conditions must be objective and specified at
the Award Date and must not be waived or changed by the Grantor unless in
accordance with their terms or where events happen which causes the
Grantor reasonably to consider that:
2.2.1 a changed Performance Condition would be a fairer measure of
performance, and would not be substantially more or less
difficult to satisfy than the condition as it existed or when
first imposed; and
2.2.2 the changed Performance Condition is similar in nature.
2.3 The grant of an Award or the delivery of any Shares following Vesting
shall be subject to obtaining any approval or consent required under any
applicable laws, regulations of governmental authority and the
requirements of the United Kingdom Listing Authority and any other
securities exchange on which the Shares are traded.
2.4 No Award may be granted, exercised, released or surrendered at a time when
such grant, exercise, release or surrender would not be in accordance with
the "Model Code on Directors' Dealings in Securities" issued by the United
Kingdom Listing Authority, or any other code adopted by the Company, as
amended from time to time.
2.5 The Grantor shall execute a deed as evidence of the grant of an Award
which deed may be in respect of an individual Award or any number of
Awards granted at the same time. As soon as reasonably practicable after
the Award Date, the Grantor shall issue to each
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Participant a certificate in respect of the Award which shall include
details of the form of the Award and otherwise be in such form as the
Grantor may prescribe from time to time.
2.6 Participants are not required to pay for the grant of an Award.
2.7 Neither an Award nor any rights in respect of it may be transferred,
assigned, or otherwise disposed of by a Participant to any other person
without the Grantor's prior consent except that, on the death of a
Participant, an Award may be transmitted to his personal representatives.
2.8 A Participant may surrender all or part of his Award by notice in writing
to the Secretary of the Company within 30 days of the Award Date. If this
happens, the Award will, to the extent surrendered, be deemed for all
purposes never to have been granted, and no further Awards shall be
granted to the Participant within 60 days of the date of surrender. No
consideration is payable for the surrender.
2.9 If the Grantor purports to grant an Award which is inconsistent with the
limits in Rules 3 or 4 the Award will be limited and will take effect from
the Award Date on a basis consistent with the Rules and the Grantor may
call in the award certificate for endorsement replacement or cancellation.
2.10 The Grantor may grant an Award to acquire cash or other assets which:
2.10.1 on Vesting, in the case of a Conditional Award, and on
exercise, in the case of a Nil Price Option, (and on such
other date determined by the Grantor in the case of any other
form of Award) delivers an amount to the Participant related
to the value of such number of Shares as is specified in the
Award
2.10.2 is otherwise subject to the Rules which shall be interpreted
in such manner as the Grantor reasonably determines is
necessary to give effect to this Rule 2.10.
2.11 All Awards granted to Participants who are resident in the U.S. shall be
evidenced by an instrument(s) in such form or forms as may from time to
time be approved by the Company which shall set out the manner in which a
Participant may exercise his Award and the form of payment for the Shares
or ADS issuable or transferable under it.
2.12 The Company may arrange for any Award to constitute a right to ADS rather
than Shares, in which case the references to "Shares" in the Plan shall be
deemed to be references to "ADS", as the context may require.
2.13 In its discretion and upon such terms and conditions as it may implement
from time to time, the Company may arrange for (i) any Award over Shares
to be satisfied in the form of ADS, and for any Award over ADS to be
satisfied in the form of Shares and (ii) for the exercise price of any
Award expressed in Sterling to be paid in U.S. dollars, and for the
exercise price of any Award expressed in U.S. dollars to be paid in
Sterling using such rate of exchange as the Grantor may reasonably
specify.
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3. INDIVIDUAL LIMITS
3.1 Subject to Rule 3.2, no Award shall be granted to an Eligible Employee
which would, at the Award Date, result in the Market Value (measured at
the relevant Award Date) of the Shares over which he has been granted
Awards under the Plan in respect of any financial year of the Company
exceeding 200% of his annual rate of basic salary.
3.2 In calculating the limit in Rule 3.1, no account shall be taken of any
Shares which are comprised in an Award to ensure that a Participant who
agrees to satisfy any liability to employer's national insurance
contributions (or the overseas equivalent to the extent this is lawful) is
not financially disadvantaged.
3.3 In calculating the limit in Rule 3.1 where Awards are granted over cash or
assets other than Shares the amount of such cash or the value of such
assets at the Award Date shall be included.
4. PLAN LIMITS
4.1 In any ten year period the number of Shares which may be allocated under
the Plan and under any other Employees' Share Scheme adopted by the
Company shall not exceed such number as represents ten per cent of the
issued ordinary share capital of the Company from time to time.
4.2 In any twelve month period, the number of Shares allocated under the Plan
and under any other Discretionary Share Plan adopted by the Company shall
not exceed such number as represents 0.5 per cent of the issued ordinary
share capital of the Company from time to time unless the number of Shares
to be allocated under the Plan and under any other Discretionary Share
Plan adopted by the Company, when aggregated with the number of Shares in
any ten year period already allocated under the Plan and under any other
Discretionary Share Plan adopted by the Company, represents less than five
per cent of the issued ordinary share capital of the Company from time to
time,
4.3 In determining the above limits:
4.3.1 any Shares allocated to the Trustees under the Plan or any
other Employees' Share Scheme adopted by the Company shall be
included; and
4.3.2 no account shall be taken of any Shares where the right to
acquire such Shares was released or lapsed without being
exercised, including pursuant to Rule 2.8.
4.4 In this Rule "allocate" shall mean, in the case of any share option plan,
the placing of unissued shares under option and, in relation to other
types of Employees' Share Scheme the commitment to issue shares or the
issue and allotment of shares (whichever is the earlier).
5. TERMINATION OF EMPLOYMENT
5.1 If a Participant dies, even if any Performance Condition has not been
satisfied, a proportion of his Award shall Vest (which proportion will
reflect the number of whole months of the
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Performance Period which have elapsed at the date of death) unless and to
the extent the Grantor determines otherwise within 30 days from the date
of death. The proportion of an Award that Vests shall be calculated as
soon as practicable and notified to the Participant's personal
representatives, and the provisions of Rule 10 and 11 (as appropriate)
shall apply accordingly.
5.2 If a Participant retires from a Group Member before the end of the
Performance Period, subject to satisfying any Performance Condition, a
proportion of his Award shall Vest at the end of the Performance Period
(which proportion will reflect the number of whole months of the
Performance Period which have elapsed at the date of his retirement)
unless and to the extent that the Grantor determines otherwise within 30
days from the date of retirement. The provisions of Rules 10 or 11 (as
appropriate) shall apply accordingly.
5.3 If a Participant ceases to hold office or employment with a Group Member
by reason of injury, ill-health or disability (evidenced to the
satisfaction of the Board), a proportion of his Award shall Vest on the
date of cessation, even if any Performance Condition has not been
satisfied (which proportion will reflect the number of whole months of the
Performance Period which have elapsed at the date of cessation) unless and
to the extent the Grantor determines otherwise within 30 days from the
date of cessation. The provisions of Rules 10 or 11 (as appropriate) shall
apply accordingly.
5.4 If a Participant ceases to hold office or employment with a Group Member
by reason either of job elimination or a reduction in workforce directly
affecting him (as determined in the opinion of the Board), a proportion of
his Award shall Vest on the date of cessation, even if any Performance
Condition has not been satisfied (which proportion will reflect the number
of whole months of the Performance Period which have elapsed at the date
of cessation) unless and to the extent the Grantor determines otherwise
within 30 days from the date of cessation. The provisions of Rules 10 or
11 (as appropriate) shall apply accordingly.
5.5 If a Participant ceases to hold office or employment with a Group Member
by reason of the company in the Group which employees him ceasing to be a
Group Member or because of the transfer or sale of the undertaking (or
part of the undertaking) in which he is employed to a person who is not a
Group Member, a proportion of his Award shall vest on the date of
cessation, even if any Performance Condition has not been satisfied (which
proportion will reflect the number of whole months of the Performance
Period which have elapsed at the date of cessation) unless and to the
extent the Grantor determines otherwise within 30 days from the date of
cessation. The provisions of Rules 10 or 11 (as appropriate) shall apply
accordingly.
5.6 If a Participant ceases to hold office or employment with a Group Member
before the end of the Performance Period for any reason other than those
specified in Rules 5.1, 5.2, 5.3, 5.4 and 5.5 his participation in the
Plan will terminate and any Awards will lapse, unless and to the extent
the Grantor determines otherwise within three months of the date of
cessation.
5.7 For the purposes of this Rule 5 and Rules 10 and 11 below, a Participant
shall not be treated as ceasing to hold office or employment with a Group
Member until he has ceased to hold office or employment with all Group
Members
5.8 For the purposes of the Plan, a woman on maternity leave will not cease to
hold an office or employment until the earlier of the date on which she
notifies her employer of her intention
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not to return or the date on which she ceases to have statutory or
contractual rights to return to work.
6. LAPSING OF AWARDS
6.1 An Award shall lapse on the earliest of:
6.1.1 the Participant ceasing to hold an office or employment or
giving or being given notice to terminate employment with a
Group Member in any circumstances except where:
6.1.1.1 any provisions in Rule 5 or (following Vesting)
Rule 10.2 apply; or
6.1.1.2 it arises during any of the periods specified
in Rule 7 other than for an act or omission of
the Participant entitling his employer to
terminate without notice his office or
employment or where the Participant gives
notice to terminate;
6.1.2 in the case of a Nil Cost Option only, the earlier of:
6.1.2.1 the tenth anniversary of the Award Date (or
such other period as determined by the grantor
at the Award Date);
6.1.2.2 twelve months after the death of the
Participant;
6.1.2.3 six months after the expiry of the Performance
Period on which a Participant retires from a
Group Member as set out in Rule 5.2;
6.1.2.4 twelve months after the date on which the
Participant ceases to hold office or employment
with a Group Member for any of the reasons set
out in Rule 5.3;
6.1.2.5 three months after the date on which the
Participant ceases to hold office or employment
with a Group Member for any of the reasons set
out in Rule 5.4 or Rule 5.5; and
6.1.2.6 the expiry of any of the applicable periods in
Rule 7.
6.1.3 where Rule 8.1 applies the expiry of the Exchange Period
except where an Award is released in consideration of the
grant of a New Award pursuant to Rule 8.2;
6.1.4 the day after the Vesting Date to the extent that the Award
has not Vested unless and to the extent that the Award is
exchanged for a New Award under Rule 8.2;
6.1.5 subject to Rule 7.5, the passing of an effective resolution or
the making of an order by the Court for the winding up of the
Company;
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6.1.6 the Participant being deprived of the legal or beneficial
ownership of the Award by operation of law or being declared
bankrupt, unless the Grantor in its absolute discretion
determines otherwise; and
6.1.7 the Participant purporting to transfer or dispose of his Award
or any rights in respect of it other than as permitted under
Rule 2.7.
7. TAKEOVER RECONSTRUCTION AND WINDING UP
7.1 Subject to Rules 7.3, 7.6 and 8.1 below, if any person obtains Control of
the Company as a result of making, either:
7.1.1 a general offer to acquire the whole of the issued ordinary
share capital of the Company (which is either unconditional or
made on a condition such that if it is satisfied the person
making the offer will have Control of the Company); or
7.1.2 a general offer to acquire all the shares in the Company which
are of the same class as the Shares,
(in either case disregarding any shares already owned by it or by any
company associated with it), Awards shall Vest when the person making the
offer has obtained Control of the Company and any condition subject to
which the offer is made has been satisfied. A Nil Cost Option may then be
exercised within the following six months.
7.2 For the purpose of Rule 7.1 a person shall be deemed to have obtained
Control of the Company if he and others acting in concert (as defined by
the City Code on Take-overs and Mergers) with him have together obtained
Control of it.
7.3 Subject to Rules 7.6 and 8.1, if any person becomes bound or entitled to
acquire Shares under sections 428 to 430F of the Companies Act 1985 Awards
shall Vest on the date on which that person first becomes so bound or
entitled. A Nil Cost Option may then be exercised within the following
four weeks.
7.4 If under section 425 of the Companies Act 1985 it is proposed that the
Court sanctions a compromise or arrangement for the purposes of or in
connection with the reconstruction of the Company or its amalgamation with
any other company or companies, the following shall apply:
7.4.1 in the case of a Conditional Award, subject to Rules 7.6 and
8.1, the Award will Vest on the date of such compromise or
arrangement being sanctioned by the Court and becoming
effective;
7.4.2 in the case of a Nil Cost Option, subject to Rules 7.6 and
8.1, the Award may be exercised conditional on such compromise
or arrangement being sanctioned by the Court and becoming
effective before the date on which it becomes effective;
7.4.3 in the case of a Nil Cost Option, to the extent the Award is
unexercised it shall lapse conditionally on the compromise or
arrangement being sanctioned by the Court and becoming
effective; and
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7.4.4 after Vesting, a Participant shall transfer or otherwise deal
with the Shares issued to him so as to place him in the same
position (so far as possible) as would have been the case if
such Shares had been subject to such compromise or
arrangement.
7.5 If notice is duly given of a resolution for the voluntary winding-up of
the Company, the Company shall notify all Participants. Subject to Rule
7.6 Conditional Awards will Vest and Nil Cost Options will Vest and may be
exercised in each case conditionally on the resolution being duly passed.
If the resolution is duly passed all Conditional Awards shall, to the
extent that they have not Vested, and all Nil Cost Options shall, to the
extent they have not been exercised, lapse immediately.
7.6 Where Rules 7.1, 7.3, 7.4 and 7.5 apply, unless and to the extent the
Grantor determines otherwise, a proportion of an Award shall Vest (which
proportion will reflect the number of months of the Performance Period
which have elapsed at the date of the relevant event). The Award may only
Vest having regard to the extent to which any Performance Condition has
been satisfied at the date of the relevant event.
8. EXCHANGE OF AWARDS FOLLOWING TAKEOVER, ETC.
8.1 Rules 7.1, 7.3 and 7.4 shall not apply where:
8.1.1 the events are part of a scheme or arrangement whereby another
company (the "Acquiror") obtains Control of the Company;
8.1.2 immediately after the Acquiror obtains Control, the issued
ordinary share capital of the Acquiror is owned substantially
by the same persons who were equity shareholders of the
Company immediately prior to the Acquiror obtaining Control;
and
8.1.3 the Acquiror agrees to grant New Awards in accordance with
Rule 8.2 in consideration for the release of any Awards which
have not lapsed.
8.2 If:
8.2.1 Awards Vest under Rules 7.1, 7.3 or 7.4 and a company obtains
Control of the Company; or
8.2.2 a company obtains Control in circumstances where Rule 8.1
applies; or
8.2.3 a company obtains Control of any Group Member as a result of a
demerger,
any Participant may during the Exchange Period by agreement with the
relevant company, release any Award which has not lapsed (the "Old Award")
in consideration of the grant to him of an award (the "New Award") which
relates to shares in a different company (whether the company which has
obtained Control of the Company itself or some other company). In the case
of a demerger, a New Award may be granted in respect of an appropriate
part of an Old Award.
8.3 Where Rule 8.2 applies, the provisions of the Plan shall for this purpose
be construed as if:
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8.3.1 the New Award were an award granted under the Plan at the same
time as the Old Award;
8.3.2 except for the purpose of the definition of "Participating
Company" in Rule 1.1 and the reference to the "Company" in
Rule 18.2, as if the reference to The BOC Group plc in the
definition of the "Company" in Rule 1.1 were a reference to
the different company mentioned in Rule 8.2;
8.3.3 subject to Rule 8.3.4 any Performance Condition will not
apply; and
8.3.4 where Rule 8.1 applies the Performance Condition will apply
either in its original form or an appropriately amended form,
unless the Grantor determines that it should be disapplied in
whole or in part.
9. REVIEW OF THE PERFORMANCE CONDITION AND VESTING OF AWARDS
9.1 As soon as reasonably practicable after the end of any Performance Period
in relation to an Award, the Grantor will review the applicable
Performance Condition and for each Award the Grantor shall determine the
extent to which Awards Vest.
10. SATISFYING CONDITIONAL AWARDS
10.1 Subject to Rules 2.3, 2.4, 12 and 13, after a Conditional Award has
Vested, the Vested Shares (or where Rule 2.10 applies, cash or other
assets) shall be transferred or allocated to the Participant within 30
days of the Vesting Date.
10.2 If the Participant's employment with any Group Member terminates after the
end of the Performance Period but before the transfer of Shares pursuant
to Rule 10.1, other than by reason of death or retirement, no Shares (cash
or other assets) will be transferred to him, unless the Grantor determines
otherwise.
10.3 The Participant has no rights attaching to any Shares (or where Rule 2.10
applies, cash or other assets), whether or not Vested, before they are
transferred or allocated to him.
11. EXERCISING AND SATISFYING NIL COST OPTIONS
11.1 Subject to Rules 2.3, 2.4, 12 and 13, a Nil Cost Option may be exercised
after it has Vested, but only to the extent it has Vested.
11.2 Subject to Rules 2.3, 2.4, 12 and 13, a Nil Cost Option may be exercised
by delivering to the Company Secretary (as agent for the Grantor) or such
other person as the Grantor determines:
11.2.1 an award certificate covering at least all the Shares (cash or
other assets) over which the Nil Cost Option is then to be
exercised; and
11.2.2 a notice of exercise in the prescribed form duly completed and
signed by the Participant (or his duly authorised agent);
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provided that the Grantor may from time to time prescribe a different
exercise procedure.
11.3 Subject to Rule 12, the Exercise Date of a Nil Cost Option shall be the
receipt of all items referred to in Rule 11.2.
11.4 Subject to Rules 2.3, 2.4, 12 and 13, the Grantor shall transfer or allot
Shares (or other assets) to the Participant pursuant to the exercise of a
Nil Cost Option within 30 days following the Exercise Date.
12. TAX LIABILITY
The Company, any Participating Company, any Group Members, any employing
company or the Trustees may withhold any amount and make any such
arrangements as it considers appropriate to meet any liability to taxation
or social security contributions in respect of Awards (including their
grant and Vesting). These arrangements may include the sale of any Shares
(or other assets) on behalf of a Participant or the reduction of the
number of Shares (cash or other assets) receivable by the Participant.
13. CASH
Instead of transferring or allotting Shares (or other assets) on Vesting
or exercise of an Award, the Grantor may in its discretion elect to
satisfy such Award by a cash payment. If this happens:
13.1 the Participant shall be entitled to a cash payment equal to the aggregate
Market Value of those Shares (or market value of the assets) over which
the Nil Cost Option was exercised at the Exercise Date or in respect of
which the Conditional Award has Vested, such payment to be made, subject
to Rule 10.2 within 30 days of the Exercise Date or Vesting Date (as
appropriate);
13.2 the Participant shall have no rights to the issue or transfer of, and the
Grantor shall be under no obligation to procure the issue or transfer of,
any Shares (or other assets) pursuant to any of the provisions of this
Plan; and
13.3 any Participating Company shall be entitled to deduct from and or withhold
from any payment in respect of any payment made under this Rule 13 any
amount to meet any liability to taxation or social security contributions.
14. ISSUE OR TRANSFER OF SHARES
14.1 The Company shall procure that sufficient Shares are available to transfer
or allot to satisfy all outstanding Awards over Shares.
14.2 Shares issued or transferred pursuant to the Plan will rank pari passu in
all respects with the Shares then in issue, except that they shall not
rank for any right attaching to Shares by reference to a record date
preceding the effective date of exercise.
14.3 If the Shares are listed on the London Stock Exchange, the Company shall
apply for listing of any Shares issued pursuant to the Plan (and not
already listed) as soon as practicable after their allotment.
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14.4 Any Shares acquired on the Vesting of Awards will be subject to the
articles of association of the Company from time to time.
15. ADJUSTMENTS
15.1 The number of Shares over which an Award is made and the Performance
Condition (and where a Nil Cost Option has been exercised but no Shares
have been allotted or transferred the number of Shares which may be so
allotted or transferred) shall be adjusted in such manner as the Grantor
shall determine following any capitalisation issue, any offer or
invitation made by way of rights, subdivision, consolidation, reduction or
other variation in the share capital of the Company, demerger, dividend in
specie, super dividend or other corporate event which in the reasonable
opinion of the Grantor justifies such an adjustment.
15.2 The Grantor may take such steps as it may consider necessary to notify
Participants of any adjustment made under this Rule 15 and to call in,
cancel, endorse, issue or reissue any certificate consequent upon such
adjustment.
16. RIGHTS OF PARTICIPANTS
16.1 Unless and to the extent the Grantor determines otherwise prior to the
Award Date, a Participant shall have no rights of ownership (beneficial or
otherwise) in respect of Shares or other assets comprised in any
Conditional Award, until it has Vested and in respect of Shares or other
assets comprised in a Nil Cost Option until it is exercised.
16.2 Unless and to the extent the Grantor determines otherwise prior to the
Award Date, a Participant shall have no rights to any dividends or other
distributions or to exercise any voting or other rights attaching to
Shares comprised in any Award prior to the date on which such Award Vests
(in the case of a Conditional Award) or such Award has been exercised (in
the case of a Nil Cost Option).
17. ADMINISTRATION
17.1 The Grantor shall administer the Plan. The Grantor shall have full
authority, consistent with the Plan, to interpret and construe any
provision of the Plan and to adopt such regulations for administering the
Plan as it may deem necessary or appropriate. The Grantor's decision shall
be final and binding on all parties.
17.2 Any notice or other communication in connection with the Plan may be given
by personal delivery or by sending the same by electronic means or by
post, in the case of a company to its registered office, and in the case
of an individual to his last known address, or, where he is an officer or
employee of a Group Member, either to his last known address or to the
address of the place of business at which he performs the whole or
substantially the whole of the duties of his office or employment, and
where a notice or other communication is given by post, it shall be deemed
to have been received 72 hours after it was put into the post properly
addressed and stamped, and if by electronic means when the sender receives
an electronic confirmation of delivery or if not available 24 hours after
sending of the notice.
17.3 The Company may send to Participants copies of any notice or document
normally sent by the Company to the holders of Shares.
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17.4 In the case of the partial exercise of any Nil Cost Option, the Grantor
may in consequence call in, endorse or cancel and re-issue, as it
considers appropriate, any certificate for the balance of the Shares over
which the Award was granted.
17.5 If any award certificate is worn out, defaced or lost, it may be replaced
on such evidence being provided as the Grantor may require.
17.6 The Participating Companies shall bear the costs of administering the Plan
in such proportions as may be determined by the Company.
17.7 The Company and any Subsidiary of the Company may provide money to the
Trustees or any other person to enable them or him to acquire Shares to be
held for the purpose of the Plan, or enter into any guarantee or indemnity
for those purposes, to the extent permitted by Section 153 of the
Companies Act 1985. In addition, the Company may require any Subsidiary of
the Company to enter into such other agreement or agreements to require
such Subsidiary of the Company to reimburse the Company for any other
amounts paid by the Company under the Plan, directly or indirectly in
respect of such Subsidiary's employees.
18. CHANGING THE PLAN
18.1 Subject to the rest of this Rule 18, the Board may at any time alter or
add to all or any of the provisions of the Plan in any respect (but only
with the prior consent of the Trustees, if there are subsisting Awards
which they have granted or agreed to satisfy which will be affected by the
alteration or addition).
18.2 No alteration, deletion or addition to the material advantage of Eligible
Employees or Participants shall be made under Rule 18.1 without the prior
approval by ordinary resolution of the members of the Company in general
meeting where such alteration or addition relates to:
18.2.1 the definition of "Eligible Employee";
18.2.2 the limits in Rules 3 and 4;
18.2.3 the rights of Participants under Rule 15; and
18.2.4 the terms of this Rule 18.2,
unless the alteration, deletion or addition is minor and to benefit the
administration of the Plan or is necessary or desirable in order to take
account of a change in legislation or to obtain or maintain favourable
tax, exchange control or regulatory treatment for any Group Member, any
Participant or Eligible Employee.
18.3 No alteration, deletion or addition shall be made under Rule 18.1 which
would abrogate or adversely affect the subsisting rights of a Participant
unless it is made:
18.3.1 with the consent in writing of such number of Participants as
hold Awards under the Plan to acquire 75 per cent of the
affected Shares which could be issued or transferred if all
such Awards granted and subsisting under the Plan had Vested
in full; or
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18.3.2 by a resolution at a meeting of Participants passed by not
less than 75 per cent of the Participants who attend and vote
either in person or by proxy,
and for the purpose of this Rule 18.3 the provisions of the articles of
association of the Company from time to time relating to shareholder
meetings shall apply mutatis mutandis.
18.4 No alteration shall be made to the Plan, if following the alteration the
Plan would cease to be an Employees' Share Scheme .
18.5 Notwithstanding any other provision of the Plan other than Rule 18.1, the
Board may, in respect of Awards granted to Participants who will be
subject to taxation outside the United Kingdom on their remuneration,
amend, or add to the provisions of the Plan or to the terms of Awards in
each case as it considers necessary or desirable to take account of or to
mitigate or to comply with relevant taxation, securities or exchange
control laws provided that the terms of Awards granted to such
Participants are not overall materially more favourable than the terms of
Awards granted to other Participants.
18.6 As soon as reasonably practicable, the Grantor shall give notice of any
alteration or addition under Rule 18 to any Participant materially
affected.
18.7 No alteration, deletion or addition under Rule 18 shall require the
consent of any person unless expressly provided for in these Rules.
19. LEGAL ENTITLEMENT
19.1 Nothing in the Plan, nor in any instrument executed pursuant to it shall
confer on any person any right to continue in employment, nor will it
affect the right of any Group Member to terminate the employment of any
person without liability at any time with or without cause, nor will it
impose upon the Board or any other person any duty or liability whatsoever
(whether in contract, tort, or otherwise howsoever) in connection with:
19.1.1 the lapsing of any Award pursuant to the Plan;
19.1.2 the failure or refusal to exercise any discretion under the
Plan; and/or
19.1.3 any Participant ceasing to hold office or employment for any
reason whatever.
19.2 Awards shall not (except as may be required by taxation law) form part of
the emoluments of individuals or count as wages or remuneration for
pension or other purposes.
19.3 Any person who ceases to be an officer or employee with any Group Member
as a result of the termination of his employment for any reason and
however that termination occurs, whether lawfully or otherwise, shall not
be entitled and shall be deemed irrevocably to have waived any entitlement
by way of damages for dismissal or by way of compensation for loss of
office or employment or otherwise to any sum, damages or other benefits to
compensate that person for the loss or alteration of any rights, benefits
or expectations in relation to any Award, the Plan or any instrument
executed pursuant to it.
19.4 Nothing in the Plan shall be deemed to give any employee of any
Participating Company any right to participate in the Plan.
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20. GENERAL
20.1 The Plan shall terminate upon the tenth anniversary of its adoption by the
Company or at an earlier time by the passing of a resolution by the Board
or an ordinary resolution of the Company in general meeting. Termination
of the Plan will be without prejudice to the subsisting rights of
Participants.
20.2 These Rules shall be governed by and construed in accordance with the laws
of England. Any person referred to in this Plan submits to the exclusive
jurisdiction of the English courts.
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