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Exhibit 10.2
NTL INCORPORATED
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RULES OF THE
NTL SHARESAVE PLAN
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Adopted by the Company on 28 October 1997
and approved by the Inland Revenue
under Schedule 9 ICTA 1988
on 16 January 1998 under
reference SRS 2073, with
further amendments adopted by
the Company on 3 February 1998
and approved by the Inland Revenue
on 10 February 1998.
ERNST & YOUNG
7 Rolls House
Rolls Building
Fetter Lane
LONDON, EC4A 1NH
Tel: 071-928-2000
Final Approved Version/10.02.98/SXP.Client.NTL.Rules4
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NTL SHARESAVE PLAN
INDEX Clause Number
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DEFINITIONS AND INTERPRETATION 1
Definitions 1.1
Interpretation 1.2
Statutory Provisions 1.3
Clause Headings 1.4
Title 1.5
INVITATIONS TO APPLY FOR OPTIONS 2
Inland Revenue Approval 2.1
Invitations 2.2
Form of Invitation 2.3
Applications for Options 2.4
SCALING DOWN 3
Excess Procedure 3.1
Modification 3.2
GRANT OF OPTIONS 4
Grant 4.1
Grant Date 4.2
Acquisition Price 4.3
OPTION CERTIFICATES 5
Issue 5.1
Content 5.2
RIGHTS TO EXERCISE OPTIONS 6
Exercise Dates 6.1
Specified Age 6.2
Termination of Employment 6.3
Material Interest 6.4
Maximum Exercise 6.5
Lapse of Rights 6.6
EXERCISE OF OPTION 7
Notice 7.1
Allotment 7.2
Share Certificates 7.3
Ranking of Shares 7.4
Partial Exercise 7.5
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NTL SHARESAVE PLAN
INDEX Clause Number
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TAKEOVERS AND LIQUIDATIONS 8
General Offers 8.1
Scheme of Reconstruction 8.2
Compulsory Purchase 8.3
Voluntary Winding Up 8.4
Meaning of Control 8.5
Manner of Exercise 8.6
Rights to Exercise 8.7
EXCHANGE OF OPTIONS ON A TAKEOVER 9
Replacement of Options 9.1
Option Certificate 9.2
No Immediate Exercise 9.3
VARIATION OF CAPITAL 10
Adjustment 10.1
Auditors' Confirmation 10.2
Inland Revenue Approval 10.3
Notice of Adjustment 10.4
ADMINISTRATION AND ALTERATION 11
Discretion of the Board 11.1
Board Decisions 11.2
Amendments 11.3
Inland Revenue Consent 11.4
Rights of Option holders 11.5
Notice of Alteration 11.6
Circulars 11.7
Cost 11.8
GENERAL 12
Availability of Shares 12.1
Employment Rights 12.2
Non-Admission 12.3
Consequence of Lapse 12.4
Transfer, Assignment or Charge 12.5
Termination 12.6
Status of Auditors 12.7
Notices 12.8
Law 12.9
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NTL Incorporated
NTL SHARESAVE PLAN
Plan Rules approved under Section 185 and Schedule 9
Income and Corporation Taxes Act 1988
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In these Rules:-
"Acquisition Price" means the price at which
each Share subject to an
Option may be acquired
on the exercise of that
Option determined
pursuant to sub-clause
4.3;
"Approved Scheme" means a scheme
established by the
Company or by any
Associated Company and
approved by the Board of
Inland Revenue under
Paragraph 1 of Schedule
9;
"Associated Company" bears the meaning
ascribed to it in
Paragraph 23 Schedule 9
by virtue of Section 187
(2) of the Taxes Act;
"the Auditors" means the auditors of
the Company for the time
being;
"the Board" means the board of
directors of the Company
as from time to time
constituted or one or
more persons duly
appointed by such board
of directors and having
such powers as the board
may from time to time
decide;
"Bonus Date" means either
(a) where pursuant to
Clauses 2 and 3
the repayment
under the Savings
Contract is taken
as including the
Maximum Bonus,
the earliest date
on which the
Maximum Bonus is
payable; or
(b) under a three
year Savings
Contract, the
earliest date on
which the Minimum
Bonus is payable
under the Savings
Contract; or
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(c) under a five year
Savings Contract,
the earliest date
on which the
Standard Bonus is
payable under the
Savings Contract;
"the Commencement Date" means the date on which
the Company receives
notice that the Plan has
been approved by the
Board of Inland Revenue
under Paragraph 1 of
Schedule 9 Provided That
the Plan has been
approved by the Company
in general meeting;
"the Company" means NTL Incorporated
of 110 East 59th
Street, New York, NY
10022, USA;
"Control" bears the meaning
ascribed to that term by
Section 840 of the
Taxes Act;
"Dealing Day" means any weekday
(excluding Saturday)
which is not a
statutory, public or
bank holiday in either
the United Kingdom or
the United States of
America;
"Grant Date" means in relation to an
Option the date on which
the Option was or is to
be granted;
"Grantor" means the grantor of any
Option pursuant to
Clause 4;
"Invitee" means a person to whom
the Board has issued an
invitation which is
subsisting to apply for
the grant of an Option;
"Market Value" means the market value
of such Share determined
in accordance with the
provisions of Part VIII
of the Taxation of
Chargeable Gains Act
1992 and agreed for the
purposes of the Plan
with the Inland Revenue
Shares Valuation
Division on or before
the day the invitation
to apply for the Option
to acquire such Share
was issued pursuant to
Clause 2;
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"Materially Interested Person" means an employee or
director of any one or
more of the
Participating Companies
who at any relevant time
has, or within the
relevant preceding
twelve (12) months has
had, a material interest
(as defined in Section
187(3) of the Taxes Act)
in the Company or in a
company which has
Control of the Company
or which is a member of
a consortium which owns
the Company, if the
Company or any such
company is at any
relevant time a close
company for the purposes
of Paragraph 8 of
Schedule 9;
"Maximum Bonus" means the bonus payable
under a seven (7) year
Savings Contract;
"Maximum Contribution" means Two hundred and
Fifty Pounds
((pound)250) per month
or (subject to
sub-clause 12.3) such
other amount as is, for
the time being, the
maximum Monthly
Contribution permitted
pursuant to Paragraph 24
of Schedule 9;
"Minimum Bonus" means the bonus payable
under a three (3) year
Savings Contract;
"Monthly Contribution" means the monthly
contribution to be paid
by an Option Holder
under his Savings
Contract;
"Option" means an option to
acquire Shares by
purchase or subscription
granted (whether by the
Company or a third
party) pursuant to the
Rules;
"Option Certificate" means a certificate
recording the terms of
grant of an Option in
accordance with the
Rules;
"Option Holder" means any person who
holds an Option or
(where the context
admits) his legal
personal
representative(s);
"Option to Subscribe" means an Option which
confers a right to
subscribe for new Shares
pursuant to this Plan;
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"Participating Company" means NTL (UK) Group,
Incorporated and any UK
resident company of
which NTL (UK) Group,
Incorporated has
Control, but excluding
any company which is for
the time being specified
by the Board as not
being a Participating
Company;
"Qualifying Employee" means any person who is
not a Materially
Interested Person and
who:-
(a) is an employee or
full-time
director of any
Participating
Company (and for
the purposes of
this definition a
director will be
regarded as
"full-time" if
his terms of
employment
require him to
devote to the
duties of his
office not less
than twenty five
(25) hours per
week (excluding
meal breaks); and
(b) on the the date
of issue of the
relevant
invitations
pursuant to
Clause 2 had been
such an employee
or director for
at least six (6)
months or such
other period
specified from
time to time by
the Board (which
shall not exceed
a period of five
years ending on
the date of grant
of the Option;
and
(c) is chargeable to
tax in respect of
his office or
employment under
Case I of
Schedule E
and any other employee
or full-time director of
any Participating
Company nominated by the
Board to be a Qualifying
Employee;
"the Rules" means these rules as
from time to time
amended;
"Savings Contract" means a contract under a
certified contractual
savings scheme, within
the meaning of Section
326 of the Taxes Act and
which has been approved
by the Commissioners of
Inland Revenue for the
purposes of Schedule 9;
"Schedule 9" means Schedule 9 to the
Taxes Act;
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"the Plan" means this Plan as from
time to time constituted
by the Rules;
"Share" means fully paid
irredeemable Common
Stock of $0.01 per share
in the capital of the
Company which complies
with Paragraphs 10 to 14
of Schedule 9;
"Specified Age" means sixty (60) years
of age;
"Standard Bonus" means the bonus payable
under a five (5) year
Savings Contract;
"Subsidiary" means a subsidiary of
the Company within the
meaning of Section 736
of the Companies Act
1985;
"Subsisting Option" mean an Option or Option
and "Subsisting Option to Subscribe (as the
to Subscribe" case may be) then
capable of being
exercised which has
neither lapsed nor been
exercised;
"Taxes Act" means the Income and
Corporation Taxes Act
1988.
1.2 Interpretation: Where the context so admits the singular includes the
plural and each gender includes each other gender.
1.3 Statutory Provisions: Any reference to a statutory provision is to be
construed as a reference to that provision as for the time being amended
or re-enacted.
1.4 Clause headings shall be ignored in interpretation.
1.5 Title: The Plan shall be entitled and referred to as the "NTL Sharesave
Plan".
2. INVITATIONS TO APPLY FOR OPTIONS
2.1. Inland Revenue Approval: No invitations to apply for Options under the
Plan may be made until this Plan becomes an Approved Scheme.
2.2 Invitations: Subject to sub-clauses 2.1 and 4.3, on such dates as it may
from time to time resolve the Board shall invite every Qualifying Employee
to apply for the grant of Options Provided That before issuing invitations
the Board may on any occasion place a limit on the number of Shares to be
made available on that occasion such number to be published upon issue of
the invitations.
2.3 Form of Invitation: Each invitation shall be in writing and shall:-
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(a) state the date on which it is issued;
(b) specify a date not earlier than fourteen (14) days after the date on
which it was issued by which an application must be received and in
default of which it will lapse;
(c) invite the Invitee to apply for an Option;
(d) specify the Acquisition Price at which each Share may be acquired on
the exercise of an Option granted pursuant to the invitation;
(e) specify the maximum Monthly Contribution the Invitee may propose to
save which shall be in multiples of one pound ((pound)1) and shall
not be greater than the lesser of the Maximum Contribution and such
sum (being a multiple of one pound ((pound)1) and not less than five
pounds ((pound)5) as the Board decides shall apply to every
Qualifying Employee in respect of that invitation;
(f) otherwise, be in such form as the Board may from time to time
prescribe.
2.4 Applications for Options:
2.4.1 Time: Within the time allowed in the invitation as the last date for
receipt of the application, each Invitee may apply for the grant of an
Option
2.4.2 Form: Each invitation shall be accompanied by a proposal form for a
Savings Contract and an application form which shall provide for the
Invitee to state:-
(a) his proposed Monthly Contribution (being a multiple of one pound
((pound)1) and not less than five pounds ((pound)5)); and
(b) that his proposed Monthly Contribution when added to any monthly
savings contributions then being made by him under any other Savings
Contracts will not exceed the maximum specified in Paragraph 24 of
Schedule 9; and
(c) whether for the purpose of determining the number of Shares over
which an Option is to be granted the repayment under the Savings
Contract is to be taken as including the Maximum Bonus, the Standard
Bonus, the Minimum Bonus or no bonus; and
(d) that he authorises the Board to enter on the Savings Contract
proposal form such Monthly Contribution not exceeding the maximum
stated on the application form as shall be determined pursuant to
Clause 3.
2.4.3 Shares: Each application shall be deemed to be for an Option over the
largest whole number of Shares which can be bought at the US dollar
Acquisition Price with the expected repayment under the related Savings
Contract at the appropriate Bonus Date following the conversion of the
repayment into US dollars.
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2.4.4 Consideration: No amount shall be payable in respect of the grant of an
Option.
3. SCALING DOWN
3.1 Excess Procedure: where the Board in its discretion considers that it is
desirable to limit the number of Shares in respect of which Options are
granted in relation to any invitation Options shall be granted to each
Qualifying Employee in respect of that number of Shares which shall be
determined by reducing the monthly savings contribution chosen by each
applicant under the Savings Contract in such manner as the Board shall, in
its discretion, determine (provided that all Qualifying Employees shall be
treated on a similar basis without regard to differences among Qualifying
Employees in respect of remuneration, length of service or any other
factor); imposing a new maximum Monthly Contribution on all Qualifying
Employees; or replacing the Maximum Bonus with the Standard Bonus or
eliminating the Maximum Standard and/or the Minimum Bonus so as to reduce
the aggregate number of Shares applied for to or as near to as shall be
practicable without exceeding the said limitation.
3.2 Modification: Each application shall be deemed to have been modified or
withdrawn in accordance with the application of sub-clause 3.1 and the
Board shall complete each Savings Contract proposal form to reflect any
resultant reduction in Monthly Contribution.
4. GRANT OF OPTIONS
4.1 Grant: The Board shall grant or procure the grant to each applicant who is
still a Qualifying Employee and is not precluded from participating in
this Plan by Paragraph 8 of Schedule 9 an Option over the number of Shares
for which pursuant to sub-clause 2.4.3 and subject to Clause 3 he shall be
deemed to have applied.
4.2 Grant Date: Any Option to be granted shall be granted as soon as the Board
deems practicable following the date stated on the relevant invitation as
being the date of its expiry Provided That the Grant Date shall not in any
circumstances be more than thirty (30) days after the date on which the
Market Value of the Shares to be subject to the Option was determined.
4.3 Acquisition Price: Subject to Clause 10, the price at which each Share
subject to an Option may be acquired on the exercise of that Option shall
be:-
(a) in the case of an Option to Subscribe, not less than the greater of
the nominal value of such Share and its Market Value on the Dealing
Day immediately preceding the day the Invitation is issued; and
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(b) in any other case not less than its Market Value and subject thereto
shall be such sum as the Grantor shall decide and cause to be stated
in that behalf in the relevant Option Certificate.
5. OPTION CERTIFICATES
5.1 Issue: As soon as is practicable after having granted an Option to a
Qualifying Employee, the Grantor shall issue to him a duly executed Option
Certificate in respect of such Option.
5.2 Content: The Option Certificate shall:-
(a) state the Grant Date of the Option;
(b) state the expected number of Shares subject to the Option being such
number of shares as the repayment under the Savings Contract can
acquire following conversion of the repayment into US dollars;
(c) state the Acquisition Price payable for each Share under the Option;
(d) refer the holder to the provisions of sub-clause 12.5; and
(e) subject to these conditions, be in such form as the Board may from
time to time prescribe.
6. RIGHTS TO EXERCISE OPTIONS
6.1 Exercise Dates: Except as otherwise provided in this Plan any Subsisting
Option may be exercised in whole or in part only after the earliest of the
following events:-
(a) the relevant Bonus Date;
(b) the death of the Option Holder;
(c) the Option Holder ceasing to be a director or employee of any
Participating Company by reason of:-
(i) injury or disability (evidenced to the satisfaction of the
Board);
(ii) redundancy within the meaning of the Employment Rights Act
1996; or
(iii) retirement on reaching the Specified Age or any other age at
which he is bound to retire in accordance with the terms of
his contract of employment;
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(d) the Option Holder ceasing to be a director or employee of any
Participating Company by reason only that:-
(i) that office or employment is in a company of which the Company
ceases to have Control; or
(ii) that office or employment relates to a business or part of a
business which is transferred to a person other than a
Participating Company;
(e) the relevant Bonus Date where an Option Holder holds an office or
employment in a company which is not a Participating Company but
which is:-
(i) an associated company of the Grantor within the meaning of
Section 416 of the Taxes Act; or
(ii) a company of which the Grantor has Control;
the Option Holder may exercise his Option within six (6) months of such
date.
6.2 Specified Age: If an Option Holder continues to be employed by a
Participating Company after the date on which he reaches the Specified Age
he may excercise any Subsisting Option within six months following that
date
6.3 Termination of Employment: No person shall be treated for the purposes of
this clause as ceasing to be employed by any Participating Company until
he ceases to hold an office or employment in the Company or any Associated
Company or company of which the Company has Control.
6.4 Material Interest: No Option may be exercised by an individual at any time
when he is a Materially Interested Person or by the personal
representative of an individual who at the date of his death was a
Materially Interested Person.
6.5 Maximum Exercise: The number of Shares over which an Option may be
exercised may not exceed the number of Shares which may be purchased with
the sum obtained by way of repayment under the related Savings Contract
excluding the repayment of any Monthly Contribution the due date for
payment of which falls more than one month after the date on which
repayment is made.
6.6 Lapse of Rights: An Option shall lapse and cease to be exercisable on the
earliest of the following events:-
(a) except where the Option Holder has died, on the expiry of six (6)
months following the Bonus Date;
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(b) where the Option Holder has died during the six (6) months following
the Bonus Date, on the first anniversary of the Bonus Date;
(c) where the Option Holder has died before the Bonus Date, on the first
anniversary of his death;
(d) unless the Option Holder has died, on the expiry of six (6) months
after the Option has become exercisable by virtue of sub-clause
6.1(c);
(e) on the expiry of six (6) months after the Option has become
exercisable by virtue of sub-clause 6.1(d) to (e) inclusive or
(subject to a release being effected pursuant to sub-clause 9.1) by
virtue of Clause 8;
(f) the Option Holder ceasing to be a director or employee of any
Participating Company in circumstances in which the Option does not
become exercisable;
(g) the date on which a resolution is passed or an order is made by the
Court for the compulsory winding up of the Company;
(h) upon the Option Holder, before the Option has become exercisable:-
(i) giving notice or being deemed to have given notice under the
Savings Contract that he intends to stop paying Monthly
Contributions; or
(ii) making an application for repayment of the related Savings
Contract;
(i) the date on which the Option Holder does or omits to do anything as
a result of which he ceases to be the legal and beneficial owner of
the Option;
(j) the date on which the Option Holder is adjudicated bankrupt.
7. EXERCISE OF OPTION
7.1 Notice: Subject to Clause 6, an Option may be exercised by the Option
Holder or as the case may be his personal representative giving notice to
the Company, the Grantor or such other person as shall be specified in the
notice of exercise in writing of the number of Shares in respect of which
he wishes to exercise the Option accompanied by the appropriate payment
(which shall not exceed the sum obtained by way of repayment under the
related Savings Contract) and the relevant Option Certificate and shall be
effective on the date of its receipt by the Company, the Grantor or such
other person as shall be specified in the notice of exercise. The Notice
exercising the Option shall be given in such form and manner, not
inconsistent with these Rules, as the Board or (as the case may be) the
Grantor may determine. In respect of Options granted otherwise than by the
Company any such
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notice (or remittance enclosed therewith) shall be received by the Company
for and on behalf of the Grantor.
7.2 Allotment: Subject to the Rules, within twenty-eight (28) days following
receipt of a notice constituting a valid exercise of an Option and
complying with the provisions of sub-clause 7.1 and the appropriate
remittance the Grantor shall allot issue or transfer or (as the case may
be) cause to be allotted, issued or transferred to the Option holder or
(as the case may be) his personal representatives the Shares the subject
of such notice.
7.3 Share Certificates: As soon as reasonably practicable after such allotment
or transfer of Shares under the Plan, the Company shall issue to such
Option Holder or his personal representatives a definitive share
certificate in respect of the Shares so allotted or transferred.
7.4 Ranking of Shares: Save for any rights determined by reference to a date
preceding the date of allotment or transfer, the Shares so issued or
transferred shall rank pari passu with the other shares of the same class
in issue at the date of allotment or transfer and carry all rights
attaching thereto at that date.
7.5 Partial Exercise: When an Option is exercised only in part it shall lapse
to the extent of the unexercised balance.
8. TAKEOVERS AND LIQUIDATIONS
8.1 General Offers: If any person (either alone or together with any person
acting in concert with him) obtains Control of the Company or having such
Control makes a general offer to acquire all the Shares of the Company
(other than those which are already owned by him and/or any person acting
in concert with him) then, notwithstanding any other provision of the
Rules but subject to sub-clauses 6.4 and 9.1, any Subsisting Option may be
exercised within six (6) months of the time 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.
8.2 Scheme of Reconstruction: If under Section 425 of the Companies Act 1985
the court sanctions a compromise or arrangement between the Company and
its members proposed for the purposes of, or in connection with, a scheme
for the reconstruction of the Company or its amalgamation with any other
company or companies, then:-
(a) each Participant may exercise his Option at any time and from time
to time in the period starting with the date upon which the
compromise or arrangement is sanctioned by the court and ending with
the earlier of the date upon which it becomes effective and the date
which is six months after the date on which it is sanctioned; and
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(b) upon the compromise or arrangement becoming effective, all Options
shall, subject to Rule 9, lapse.
8.3 Compulsory Purchase: If any person becomes bound or entitled to acquire
Shares in the Company under Section 428 to 430F of the Companies Act 1985,
any Subsisting Option (subject to sub-clauses 6.4 and 9.1) may be
exercised at any time while that person remains so bound or entitled.
8.4 Voluntary Winding-Up: Subject to sub-clause 6.4 if the Company passes a
resolution for voluntary winding up, any Subsisting Option may be
exercised within six (6) months of the passing of the resolution.
8.5 Meaning of Control and Concert in sub-clause 8.1: For the purposes of
sub-clause 8.1 (and only for such purpose):-
(a) a person shall be deemed to have obtained Control of the Company if
he and others acting in concert with him have together obtained
Control of the Company;
(b) persons acting in concert comprise persons who, pursuant to an
agreement or understanding (whether formal or informal), actively
co-operate, through the acquisition by any of them of shares in the
Company, to obtain or consolidate Control of the Company.
8.6 Manner of Exercise: The exercise of an Option pursuant to the preceding
provisions of this clause shall be subject to the provisions of Clause 7.
8.7 Rights to Exercise: For the avoidance of doubt, an Option may only be
exercised pursuant to this clause on a date on which it remains a
Subsisting Option.
9. EXCHANGE OF OPTIONS ON A TAKEOVER
9.1 Replacement of Options: If any company ("the Acquiring Company") obtains
Control of the Company, or becomes bound or entitled to acquire shares in
the Company within any of the sets of circumstances specified in
Paragraphs 15(1)(a) (b) or (c) of Schedule 9, any Option holder may at any
time within the appropriate period (as defined in Paragraph 15(2) of
Schedule 9) by agreement with the Acquiring Company release his option
("the Old Option") in consideration of the grant to him of an option ("the
New Option") which:-
(a) relates to shares in a different company (whether the Acquiring
Company itself or some other company which on the assumption that
the Acquiring Company were the grantor would be a company falling
within Paragraph 10(b) or (c) of Schedule 9);
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(b) is a right to acquire such number of such shares as has on
acquisition of the New Option an aggregate Market Value equal to the
aggregate Market Value of the Shares subject to the Old Option on
its release;
(c) has an acquisition price per Share such that the aggregate price
payable on complete exercise equals the aggregate Acquisition Price
which would have been payable on complete exercise of the Old
Option;
(d) is otherwise equivalent to the Old Option (as defined in Paragraph
15(3) of Schedule 9).
The New Option shall, for all other purposes of this Plan, be treated as
having been acquired at the same time as the Old Option for which it is
released and, following release of the Old Option and the grant of the New
Option, for the purposes of applying Rules 6, 7, 8, 9, 10 and 12 thereto:-
(i) "Company" and "Shares" in relation to the New Option shall be
construed as if references to the Company and to the Shares were
references to the Acquiring Company and to shares in the Acquiring
Company or (as the case may be) to the other company to whose shares
the New Options relate and to the shares in the other company
whether the Acquiring Company itself or some other company falling
within Paragraph 10(b) or 10(c) of Schedule 9 but for the purpose of
"Participating Company" the Company shall continue to be NTL
Incorporated.
(ii) "Board" shall mean the board of directors of that company or a duly
constituted committee thereof.
9.2 Option Certificate: Upon grant of the New Option, a new Option Certificate
shall be issued accordingly and the Third and Fourth Schedules shall be
amended mutatis mutandis;
9.3 No Immediate Exercise: For the avoidance of doubt where in accordance with
sub-clause 9.1 Subsisting Options are released and New Options granted,
the New Options shall not be exercisable in accordance with sub-clauses
8.1 to 8.3 by virtue of the event on which the New Options were granted.
10. VARIATION OF CAPITAL
10.1 Adjustment: Subject as provided in sub-clauses 10.2 and 10.3, in the event
of any capitalisation issue, rights issue, sub-division, consolidation or
reduction of share capital, or any other variation in the share capital of
the Company the Board and (as appropriate) the Grantor may make such
adjustment as shall be fair and reasonable in all the circumstance to:-
(a) the number or nominal value of Shares comprised in any Option;
and/or
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(b) the Acquisition Price payable for Shares subject to any Option.
Provided Always That the Acquisition Price payable on subscription for new
Shares shall never be less than the nominal value of the Share to which it
relates, the aggregate amount payable on the exercise of an Option in full
shall not thereby be increased and no adjustment shall cause any of the
conditions of the approval of the Plan under Schedule 9 to be thereby
breached.
10.2 Auditors' Confirmation: Except in the case of a capitalisation issue no
adjustment under sub-clause 10.1 shall take effect without prior
confirmation in writing by the Auditors that the adjustment is in their
opinion fair and reasonable in all the circumstances.
10.3 Inland Revenue Approval: No adjustment under sub-clause 10.1 shall take
effect without prior confirmation in writing by the Board of the Inland
Revenue approving such proposed adjustment.
10.4 Notice of Adjustment: As soon as reasonably practicable after making any
adjustment under sub-clause 10.1 the Board and (as appropriate) the
Grantor shall give notice in writing to every Option Holder thereby
affected specifying the adjustments made insofar as they affect him and
(subject to sub-clauses 10.2 and 10.3) such notice shall be binding upon
the Option Holder in the absence of manifest error Provided That where
pursuant to Paragraphs 10.1(b) or 10.1(c) an adjustment is made to the
terms of an Option prior to the issue of an Option Certificate pursuant to
sub-clause 5.1, the certificate shall set out details of the Option as so
adjusted and shall be deemed to be sufficient notice of the adjustment for
the purpose of this sub-clause.
11. ADMINISTRATION AND ALTERATION
11.1 Discretion of the Board: The Board shall have power from time to time to
make and vary such regulations (not being inconsistent with the Rules) for
the implementation and administration of this Plan.
11.2 Board Decisions: Save in respect matters to be confirmed by the Auditors
in accordance with these Rules, the decision of the Board shall be final
and binding in all matters relating to this Plan, any dispute or
disagreement as to the interpretation of the Plan or of any rule,
regulation or procedure or as to any question of right arising out of or
in respect of the Plan.
11.3 Amendments: Subject to sub-clause 11.4, this Plan may be amended in any
respect by resolution of the Board PROVIDED THAT no amendment shall take
effect which would cause this Plan to cease to be an Approved Scheme.
11.4 Inland Revenue Consent: No amendment to these Rules shall have effect
unless and until approved by the Board of the Inland Revenue.
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11.5 Rights of Option Holders: No amendments shall be made to the Plan which
would have the effect of abrogating or prejudicially affecting any of the
subsisting rights of Option Holders except with such consent on their part
as would be required by provisions of the Company's Certificate of
Incorporation if the Shares to be issued on the exercise of the Options
were so issued and constituted a separate class of share capital and if
such provisions applied mutatis mutandis thereto.
11.6 Notice of Alteration: As soon as reasonably practicable after making any
alteration or addition under this clause the Board shall give notice in
writing thereof to any Option Holder who is thereby affected.
11.7 Circulars: The Company shall not be obliged to provide Qualifying
Employees or Option Holders with copies of any notices, circulars or other
documents sent to shareholders of the Company.
11.8 Cost: The cost of establishing and operating the Plan shall be borne by
such of the Participating Companies and in such proportions as the Board
shall determine.
12. GENERAL
12.1 Availability of Shares: The Company shall at all times ensure there are
sufficient Shares available to satisfy the exercise to the full extent
still possible of all Subsisting Options whether by issue of new Shares or
the transfer of exisiting Shares, taking account of any other obligations
of the Company to issue unissued Shares and of the availability of
existing unissued Shares.
12.2 Employment Rights:
12.2.1 Effect of Participation:
This Plan shall not form part of any contract of employment between any
Participating Company and any employee of any such company and the rights
and obligations of any individual under the terms of his office or
employment with the Company or any Participating Company shall not be
affected by his participation in the Plan or any right which he may have
to participate therein.
12.2.2 Effect of Loss of Office:
Participation in the Plan shall be on the express condition that:-
(i) neither it nor cessation of participation shall afford any
individual under the terms of his office or employment with the
Company or any Participating Company any additional or other rights
to compensation or damage; and
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(ii) no damages or compensation shall be payable in consequence of the
termination of such office or employment or for any other reason
whatsoever to compensate him for the loss or any right he would
otherwise have had (actual or prospective) under the Plan howsoever
arising but for such termination; and
(iii) by applying for an Option he shall be deemed irrevocably to have
waived any such rights to which he may otherwise have been entitled.
12.3 Non-Admission: No Qualifying Employee shall have any claim against a
Participating Company arising out of his not being admitted to
participation in the Plan if the Qualifying Employee's participation in
the Plan is entirely within the discretion of the Board.
12.4 Consequence of Lapse: No Option Holder shall be entitled to claim
compensation from any Participating Company or the Grantor of any Option
to acquire Shares in respect of any sums paid by him pursuant to the Plan
or of any diminution or extinction of his rights or benefits (actual or
otherwise) under any Option held by him consequent upon the lapse for any
reason of any Option held by him or otherwise in connection with the Plan
and the Company and each Participating Company shall be entirely free to
conduct its affairs as it sees fit without regard to any consequences
under, upon or in relation to the Plan or any Option or Option Holder.
12.5 Transfer, Assignment or Charge: All Options granted to Qualifying
Employees are personal rights which cannot be transferred, assigned or
charged in any circumstances whatsoever save as set out in sub-clause 10.1
and any purported transfer, assignment or charge (save as aforesaid) shall
cause the Option to lapse forthwith.
12.6 Termination: The Board may terminate the Plan at any time but Options
granted prior to such termination shall continue to be valid and
exercisable in accordance with the Rules, which shall continue to apply
thereto.
12.7 Status of Auditors: In any matter in which they are required to act under
the Plan, the Auditors shall act as experts and not as arbitrators and
their determination of the matter referred to them shall be final and
conclusive.
12.8 Notices: Any notice or other communication required to be given pursuant
to the terms of the Plan shall be sent:-
(a) in the case of any Participating Company, by personal delivery or by
first-class post to such company at its registered office and shall
be effective upon receipt;
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(b) in any other case, by personal delivery or by delivering or sending
the same by first-class post to the addressee's address last know to
the Company or the address of the place of business from which he
performs the whole or substantially the whole of his duties of his
office or employment (and notice to the personal representatives of
a deceased Option holder shall be effective if given personally or
if left at or sent by first class post addressed to the Option
holder and delivered or sent by post accordingly) and where such
notice or other communication is given by post it shall be deemed to
have been received no later than forty-eight (48) hours after it was
put into the post properly addressed and stamped.
12.9 Law: The Plan and all Options shall be governed by and construed in
accordance with English law.