EXHIBIT 4.5
MALLESONS STEPHEN JAQUES
James Hardie Industries NV
Long Term Incentive Plan
Dated 1 August 2006
MALLESONS STEPHEN JAQUES
Level 60
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Australia
T +61 2 9296 2000
F +61 2 9296 3999
DX 113 Sydney
www.mallesons.com
LONG TERM INCENTIVE PLAN
Contents
GENERAL TERMS 3
1 INTRODUCTION 3
1.1 Purpose 3
1.2 Commencement 3
1.3 Rules are binding 3
1.4 Plan not to limit other arrangements 3
2 INVITATION, APPLICATION AND ACCEPTANCE 3
2.1 Eligibility 3
2.2 Invitation may be made 3
2.3 Form of Application 3
2.4 Participant agrees to be bound 3
2.5 Acceptance of Application 5
2.6 When Company must receive the Application 5
2.7 Who may apply 5
2.8 When applications will not be accepted 5
2.9 Board's discretion 5
2.10 Cessation of membership 6
3 ADMINISTRATION OF PLAN 6
3.1 Trustee and Board to administer Plan 6
3.2 Board powers and discretions 6
3.3 Delegation of Board powers and discretions 6
3.4 Documents 6
3.5 Board decision: final and conclusive 7
3.6 Suspension of Plan 7
3.7 Manner of exercise of Remuneration Committee authority 7
3.8 Consultants 7
4 RESTRICTIONS ON THE PLAN 8
4.1 Compliance with Applicable Regulations 8
4.2 Restriction on the size of the Plan 8
4.3 Incentive Stock Option Limits 8
4.4 Application of Limitation to Grants of Award 9
4.5 Per-Person Award Limitations 9
5 AMENDMENT OF THE PLAN 9
5.1 Board may amend 9
5.2 No reduction of existing rights 9
5.3 Retrospective amendment possible 10
5.4 Shareholder Approval of Certain Amendments 10
6 TERMINATION OF THE PLAN 10
7 MISCELLANEOUS PROVISIONS 11
7.1 Rights of Participants 11
7.2 Instructions by Participants 11
7.3 Notices 11
7.4 Governing law 12
7.5 Payments net of tax 12
7.6 Taxes on transfers to Participants 12
7.7 Rounding 12
7.8 Plan Effective Date and shareholder approval 12
8 DEFINITIONS AND INTERPRETATION 13
8.1 Definitions 13
8.2 Interpretation 20
8.3 Heading 21
SCHEDULE 1 - OPTIONS 22
SCHEDULE 2 - PERFORMANCE RIGHTS 32
SCHEDULE 3 - PERFORMANCE SHARES 42
SCHEDULE 4 - AWARD 65
SCHEDULE 5 - PROVISIONS APPLICABLE ONLY TO U.S. EXECUTIVES 72
LONG TERM INCENTIVE PLAN
GENERAL TERMS
1 INTRODUCTION
1.1 PURPOSE
The Plan provides eligible Executives with an opportunity to acquire an
ownership interest or exposure to an ownership interest in the Company.
1.2 COMMENCEMENT
The Plan commences on the date that the Company determines.
1.3 RULES ARE BINDING
The Company, the Trustee, each Participating Company and each Participant
are bound by these rules.
1.4 PLAN NOT TO LIMIT OTHER ARRANGEMENTS
This Plan is not the sole means by which the Group intends to provide
incentives to Participants or other employees of the Group, and nothing in
this Plan is intended to restrict the Group from remunerating or otherwise
rewarding Participants or other employees outside the Plan.
2 INVITATION, APPLICATION AND ACCEPTANCE
2.1 ELIGIBILITY
The Board may determine the Executives who are eligible to participate in
the Plan from time to time.
2.2 INVITATION MAY BE MADE
From time to time the Company may make an Invitation to participate in the
Plan to an Executive who is eligible to participate in the Plan in
accordance with rule 2.1.
2.3 FORM OF APPLICATION
The Invitation to an Executive must be accompanied by an Application Form.
2.4 PARTICIPANT AGREES TO BE BOUND
Each Participant is, by submitting a completed Application Form, deemed to
have agreed to be bound by:
(a) the terms of the Invitation and Application Form;
(b) the provisions of these rules, as amended from time to time, except
the provisions of the schedules apply in accordance with paragraph (d)
below;
(c) the Articles of Association, as amended from time to time; and
(d) the provisions of:
(i) schedule 1, to the extent the Participant makes an Application
for Options;
(ii) schedule 2, to the extent the Participant makes an Application
for Performance Rights;
(iii) schedule 3, to the extent the Participant makes an Application
for Performance Shares and the Participant is not a U.S.
Executive at the time of the grant;
(iv) schedule 4, to the extent the Participant makes an Application
for Awards; and
(v) schedule 5, to the extent that the Participant is a U.S.
Executive at the time of grant;
(e) for Performance Shares issued in accordance with schedule 3, the
provisions of the Trust Deed.
2.4A TRUST TO BE CONSTITUTED
The Company must not make an Invitation to participate in the Plan for
Performance Shares on the terms set out in schedule 3, unless a Trust has
been constituted.
2.4B COMPANY MAY PROVIDE
The Company may provide:
(i) Options on the terms set out in schedule 1;
(ii) Performance Rights on the terms set out in schedule 2;
(iii) Performance Shares to any Participant who is not a U.S.
Executive at the time of the grant, on the terms set out in
schedule 3 and subject to the terms of the Trust Deed;
(iv) Awards on the terms set out in schedule 4;
(v) Options, Performance Rights or Awards to a U.S. Executive on the
terms set out in schedule 5 (including, to the extent that there
is no inconsistency, any terms set out in schedules 1, 2 and 4
respectively which are incorporated into schedule 5); and
(vi) Performance Shares to a U.S. Executive on the terms set out in
schedule 5 (including, to the extent that there is no
inconsistency, any terms set out in schedule 3 which do not
relate to the terms of the Trust and which are incorporated into
schedule 5).
2.5 ACCEPTANCE OF APPLICATION
The Application must be in the form included with the Invitation, and may
not be made on the basis that it is subject to any terms and conditions
other than those specified in the Invitation. The method of acceptance of
an Application must be set out in the Application Form, including:
(a) the name or title of the person to whom the Application must be sent;
and
(b) the date and time by which the Application must be received by or on
behalf of the Company.
2.6 WHEN COMPANY MUST RECEIVE THE APPLICATION
For an Application to be effective, it must be received by or on behalf of
the Company by the time and date specified in the Invitation, unless
otherwise determined by the Board.
2.7 WHO MAY APPLY
On receipt of an Invitation, the Executive may apply for the Options,
Performance Rights, Performance Shares or Awards (as the case may be)
described in that Invitation by sending to the person designated by the
Company an Application duly completed and signed in accordance with rule
2.6.
2.8 WHEN APPLICATIONS WILL NOT BE ACCEPTED
An Application under rule 2.7 will not be accepted if, at the date the
Application would otherwise be accepted:
(a) he or she is not an Executive;
(b) he or she has given their Employer notice of his or her resignation as
an Executive; or
(c) he or she has been given notice of termination of employment as an
Executive or if, in the opinion of the Board, he or she has tendered
his or her resignation to avoid such dismissal.
2.9 BOARD'S DISCRETION
The Board may determine that an Application under this rule 2 by an
Executive who would otherwise be eligible to participate under these rules
will not be accepted.
2.10 CESSATION OF MEMBERSHIP
A person ceases to be a Participant when all other property or moneys to
which the Participant is entitled under the Plan have been transferred or
paid in accordance with these rules.
3 ADMINISTRATION OF PLAN
3.1 TRUSTEE AND BOARD TO ADMINISTER PLAN
(a) The Plan is to be administered by the Board and to the extent
specified under schedule 3, the Trustee, in accordance with these
rules. The Board may make further provisions for the operation of the
Plan which are consistent with these rules.
(b) Notwithstanding (a), the Remuneration Committee shall administer the
Plan and any Invitations with respect to grants of Options,
Performance Rights, Performance Shares and/or Awards made to Covered
Employees. Furthermore, in respect of such grants of Options,
Performance Rights, Performance Shares and/or Awards made to Covered
Employees, any references in these rules (or in any Invitation issued
under these rules) to the Board, except for those provided in rules
3.3 and 3.6, shall be replaced with Remuneration Committee in each
such place that it occurs.
3.2 BOARD POWERS AND DISCRETIONS
Any power or discretion which is conferred on the Board by these rules must
be exercised by the Board in the interests or for the benefit of the
Company, and the Board is not, in exercising any power or discretion, under
any fiduciary or other obligation to any other person.
3.3 DELEGATION OF BOARD POWERS AND DISCRETIONS
Any power or discretion which is conferred on the Board by these rules
including the power to invite Executives to participate in the Plan and to
determine the terms and conditions of a Participant's Option, Performance
Right, Performance Share or Award may be delegated by the Board to:
(a) a committee consisting of such directors, other officers or employees
of the Company, or any combination of such persons as the Board thinks
fit;
(b) a related body corporate of the Company; or
(c) a third party,
for such periods and on such conditions as the Board thinks fit.
3.4 DOCUMENTS
The Company may from time to time require a person invited to participate
in the Plan or a Participant to complete and return such other documents as
may be required by law to be completed by that person or Participant, or
such
other documents which the Company considers should, for legal, taxation or
administrative reasons, be completed by that person or Participant.
3.5 BOARD DECISION: FINAL AND CONCLUSIVE
The decision of the Board as to the interpretation, effect or application
of these rules and all calculations and determination made by the Board
under these rules are final, conclusive and binding in the absence of
manifest error.
3.6 SUSPENSION OF PLAN
The Board may from time to time suspend the operation of the Plan and may
at any time cancel the Plan. The suspension or cancellation of the Plan
must not prejudice the existing rights (if any) of Participants.
3.7 MANNER OF EXERCISE OF REMUNERATION COMMITTEE AUTHORITY
(a) The Remuneration Committee, and not the Board, shall exercise sole and
exclusive discretion on any matter relating to a Participant then
subject to Section 16 of the U.S. Exchange Act with respect to the
Company to the extent necessary in order that transactions by that
Participant shall be exempt under Rule 16b-3 under the U.S. Exchange
Act.
(b) Any action of the Remuneration Committee shall be final, conclusive
and binding on all persons, including the Company, its Executives,
their beneficiaries or other persons claiming rights from or through
an Executive, and shareholders.
(c) The express grant of any specific power to the Remuneration Committee,
and the taking of any action by the Remuneration Committee, shall not
be construed as limiting any power or authority of the Remuneration
Committee.
(d) The Remuneration Committee may delegate to officers or managers of the
Company, or any committees thereof, the authority (subject to such
terms as the Remuneration Committee shall determine), to perform such
functions, including administrative functions, as the Remuneration
Committee may determine, to the extent that such delegation will not:
(i) result in the loss of an exemption under Rule 16b-3(d)(1) for
Options, Performance Rights, Performance Shares or Awards granted
to Participants subject to Section 16 of the U.S. Exchange Act in
respect of the Company; or
(ii) cause Options, Performance Rights, Performance Shares or Awards
which are intended to qualify as "performance-based compensation"
under U.S. Revenue Code Section 162(m) to fail to so qualify.
3.8 CONSULTANTS
If:
(a) a Participant's employment agreement provides that the Participant
will commence as a consultant to a Group Company on ceasing employment
with the Company; and
(b) on ceasing employment with the Company, the Participant commences as a
consultant to a Group Company in accordance with that agreement,
then
(c) the Participant is deemed to continue as an employee of the Company
for the purposes of these rules; and
(d) the Participant will cease to be an employee for the purposes of these
rules when the Participant ceases to be a consultant to that Group
Company.
4 RESTRICTIONS ON THE PLAN
4.1 COMPLIANCE WITH APPLICABLE REGULATIONS
Despite any other provision of these rules or any term or condition of the
participation of any Participant in the Plan, no Share may be acquired by
the Trustee or transferred to a Participant or other person, no Performance
Right or Option may be granted or exercised, no Award may be granted and no
Payout may be made if to do so would contravene any Applicable Regulations.
4.2 RESTRICTION ON THE SIZE OF THE PLAN
The Board must not issue an Invitation to apply for Options, issue Shares
on the exercise of Performance Rights, or cause the Trustee of the
Performance Share Plan to subscribe for Shares, if the number of Shares the
subject of the Invitation to apply for Options, the exercise of the
Performance Rights or the subscription for shares by the Trustee of the
Performance Share Plan, when added to:
(a) the number of Shares which would be issued if all outstanding Options,
and all Options which may be granted pursuant to the acceptance of any
outstanding Invitation to apply for Options, were exercised; and
(b) the number of Shares issued to the Trustee of the Performance Share
Plan and which remain held in that Trust,
would exceed 5% of the total number of issued Shares at the relevant date.
4.3 INCENTIVE STOCK OPTION LIMITS
Notwithstanding anything in this rule 4 to the contrary, but subject to any
adjustments provided for in Schedules 2 and 5 of these rules, the maximum
aggregate number of Shares that may be issued under the Plan as a result of
the exercise of Incentive Stock Options shall be 8 million Shares.
4.4 APPLICATION OF LIMITATION TO GRANTS OF AWARD
(a) No Option, Performance Right, Performance Share or Award may be
granted if:
(i) the number of Shares to be delivered in connection with such an
Option, Performance Right, Performance Share or Award; or
(ii) in the case of an Option, Performance Right, Performance Share or
Award relating to Shares but settled only in cash (such as
cash-only Awards), the number of Shares to which such Option,
Performance Right, Performance Share and/or Award relates,
exceeds the number of Shares remaining available for delivery under
the Plan, minus the number of Shares deliverable in settlement of or
relating to then outstanding Options, Performance Rights, Performance
Shares and/or Awards.
(b) The Board may adopt reasonable counting procedures to ensure
appropriate counting, avoid double counting (as, for example, in the
case of tandem or substitute awards) and make adjustments if the
number of Shares actually delivered differs from the number of Shares
previously counted in connection with an Option, Performance Right,
Performance Share and/or Award.
4.5 PER-PERSON AWARD LIMITATIONS
Subject to any adjustments provided for in Schedules 2 and 5 of these
rules, in any financial year of the Company during any part of which the
Plan is in effect, no Participant may be granted Options, Performance
Rights, Performance Shares or Awards with respect to more than 2 million
Shares. In addition, the maximum dollar value payable to any one
Participant with respect to Awards (or with respect to any Performance
Rights payable in cash) is US$1 million.
5 AMENDMENT OF THE PLAN
5.1 BOARD MAY AMEND
Subject to rules 5.2, 5.3 and 5.4, the Board may at any time by written
instrument, amend all or any of the provisions of these rules, including
this rule 5.
5.2 NO REDUCTION OF EXISTING RIGHTS
Any amendment to the provisions of these rules must not materially reduce
the rights of any Participant as they existed before the date of the
amendment, unless the amendment is introduced primarily:
(a) for the purpose of complying with or conforming to present or future
law or regulation governing or regulating the maintenance or operation
of the Plan or like plans;
(b) to correct any manifest error or mistake;
(c) to enable contributions or other amounts paid by a member of the Group
to the Plan to qualify as income tax deductions for that member or
another member of the Group;
(d) to enable the Trustee or any Employer to reduce the amount of fringe
benefits tax under the Fringe Benefits Tax Assessment Act 1986
(Cwlth), the amount of tax under the Tax Acts, or the amount of any
other tax or impost that would otherwise be payable by the Trustee or
the Employer in relation to the Plan;
(e) for the purpose of enabling the Participants generally (but not
necessarily each Participant) to receive a more favourable taxation
treatment in respect of their participation in the Plan; or
(f) to enable the Plan or any member of the Group to comply with
Applicable Regulations.
5.3 RETROSPECTIVE AMENDMENT POSSIBLE
Subject to rules 5.2 and 5.4, any amendment made under rule 5.1 may be
given retrospective effect as specified in the written instrument by which
the amendment is made.
5.4 SHAREHOLDER APPROVAL OF CERTAIN AMENDMENTS
In the event that the Board amends:
(a) the limits set forth in rules 4.3 and 4.5 hereof;
(b) the rules set forth in Schedule 5 hereof;
(c) any Options, Performance Rights, Performance Shares and/or Awards that
are granted to a U.S. Executive; and/or
(d) any other rules of this Plan, if so required by the U.S. Revenue Code,
the U.S. Exchange Act, the New York Stock Exchange (or other automated
quotation system on which the Shares may then be listed or quoted)
and/or any other applicable U.S. laws or regulations,
such amendments shall be subject to the approval of the Company's
shareholders not later than the next annual meeting following such Board
action.
6 TERMINATION OF THE PLAN
The Plan terminates and is to be wound up (as provided below) on the
earliest of:
(a) if an order is made or an effective resolution is passed for the
winding up of the Company other than for the purpose of amalgamation
or reconstruction;
(b) if the Board determines that the Plan is to be wound up; or
(c) with respect only to Incentive Stock Options, whether vested or not,
on the tenth anniversary of the Effective Date of the Plan.
7 MISCELLANEOUS PROVISIONS
7.1 RIGHTS OF PARTICIPANTS
Nothing in these rules:
(a) confers on any person any expectation to become a Participant;
(b) confers on any Executive the right to be invited to apply for, to be
offered or to receive any Option, Performance Right, Performance Share
or Award;
(c) confers on any Participant the right to continue as an employee of any
Employer;
(d) affects any rights which any Employer may have to terminate the
employment of any Executive; or
(e) may be used to increase damages in any action brought against any
Employer in respect of any termination of employment.
No person, whether a Participant or otherwise, has any claim, right or
interest in respect of the Plan or any Performance Shares or other property
of the Plan, whether against the Trustee, the Company or any other person,
as a consequence of termination of the Executive's employment or
appointment or otherwise, except under and in accordance with these rules.
7.2 INSTRUCTIONS BY PARTICIPANTS
For the purposes of these rules, the Trustee, the Board, the Company and
any Employer is entitled to regard any notice, direction or other
communication given or purported to be given by or on behalf of a
Participant (or a legal personal representative of a Participant) as valid,
whether given orally or in writing. Any notice, direction or other
communication given or purported to be given by or on behalf of a
Participant (or a legal personal representative of a Participant) or any
other person under these rules to the Company, the Trustee or the Employer
is duly given only if actually received by the Company, Trustee or Employer
(as the case may be).
7.3 NOTICES
Any notice, certificate, consent, approval, waiver or other communications
given by the Board, the Trustee, the Company or the Employer is deemed to
have been duly given if:
(a) sent by electronic mail or delivered by hand; or
(b) sent by ordinary prepaid mail,
and is deemed to have been served:
(c) if sent by electronic mail or delivered by hand, at the time of
sending or delivery; or
(d) if posted, three Business Days (or, if posted to a Participant's
address outside The Netherlands, seven Business Days) after the date
of posting.
Delivery, transmission and postage is to the address of any Participant as
indicated on the Application Form, any other address as the Board, the
Trustee or any Participant may notify to the other or in the case of a
Participant who is an Executive, the address of the place of business at
which the Participant performs the whole or substantially the whole of the
duties of his or her office or employment.
7.4 GOVERNING LAW
These rules are governed by the laws in force in The Netherlands and are
construed and take effect in accordance with those laws.
7.5 PAYMENTS NET OF TAX
If, when the Board or the Trustee makes or is deemed to make a payment to a
Participant under these rules, the Board or the Trustee is obliged to
deduct or withhold any amount of tax or other government levy or impost,
the payment to the Participant is to be made net of the deduction or
withholding.
7.6 TAXES ON TRANSFERS TO PARTICIPANTS
The Board or the Trustee may, when transferring Shares to a Participant
under these rules, require the Participant to provide the Board or the
Trustee with an amount of money which the Board or the Trustee estimates is
necessary to meet the Participant's liability (if any) to pay stamp duty or
other taxes in respect of the transfer. Where the Board or the Trustee is
provided with funds for that purpose, the Board or the Trustee must apply
the funds in payment of the stamp duty or other tax, arrange for
registration of the transfer on the Participant's behalf and return any
excess funds to the Participant.
7.7 ROUNDING
Unless expressly provided for in these rules, any calculation of a number
of Shares under the Plan is to be rounded to the nearest whole number with
0.5 being rounded up.
7.8 PLAN EFFECTIVE DATE AND SHAREHOLDER APPROVAL
If approval of the Plan is mandatory under the requirements of:
(a) U.S. Revenue Code Sections 162(m) (if applicable) and 422, and Rule
16b-3 under the U.S. Exchange Act
(b) the rules of any stock exchange or automated quotation system on which
the Shares may be listed or quoted; and
(c) other laws, regulations, and obligations of the Company applicable to
the Plan,
then, to that extent, the Plan shall become effective on the Effective
Date, subject to approval within 12 months of its adoption, by shareholders
of the Company eligible to vote on the election of directors.
If approval of the Plan is required in relation to Options, Performance
Rights, Performance Shares and/or Awards, then those Options, Performance
Rights, Performance Shares and/or Awards may be granted subject to any
shareholder approval so required, but may not be exercised or otherwise
settled in the event the shareholder approval is not obtained.
8 DEFINITIONS AND INTERPRETATION
8.1 DEFINITIONS
The following words and expressions have the following meanings unless the
contrary intention appears:
ACQUISITION DATE means, in relation to a Participant's Share, the date on
which a Participant acquires the Participant's Share for the purposes of
Division 13A of Part III of the Tax Act.
APPLICABLE REGULATIONS means the listing requirements imposed by any
exchange or trading system on which the Company's securities trade and any
law or regulation that applies to the operation of the Plan.
APPLICATION means an application for Options, Performance Rights,
Performance Shares or an Award made by an Executive under the terms of an
Invitation.
APPLICATION FORM means an application form attached to an Invitation.
ARTICLES OF ASSOCIATION means the articles of association of the Company.
ASTC SETTLEMENT RULES means the operating rules of ASX Settlement and
Transfer Corporation Pty Limited.
ASX means Australian Stock Exchange Limited.
AWARD means an entitlement to a Payout.
BOARD means all or some of the directors of the Company acting as a board,
and includes a committee of the Board and a delegate of the Board.
BUSINESS DAY means a day other than a Saturday, Sunday or public holiday in
The Netherlands.
COMPANY means James Hardie Industries NV.
CORPORATIONS ACT means the Corporations Act 2001 (Cwlth).
COVERED EMPLOYEE means an Executive who is a "covered employee" within the
meaning of Section 162(m)(3) of the U.S. Revenue Code, or any successor
provision thereto.
CUFS means a CHESS unit of Foreign Securities, as defined in the ASTC
Settlement Rules, in respect of Shares.
DETERMINATION DATE means in respect of a Payout the date determined by the
Board and set out in the Invitation to the relevant Participant to apply
for the Payout.
DIVIDENDS means dividends declared or paid in respect of Shares held by the
Trustee on behalf of a Participant and includes any amount distributed in
respect of those Shares following a reduction of capital by the Company.
EFFECTIVE DATE means the date the Plan is approved by the Board, which
shall be 1 August, 2006.
EMPLOYER means any Group Company, and in relation to any particular
Participant means the company by which that Participant is for the time
being employed.
EXECUTIVE means a person who is in the full time or part time employment of
a Group Company.
EXERCISE CONDITION means, in relation to an Option or a Performance Right,
a condition (other than a Vesting Condition) which must be satisfied or
waived before that Option or Performance Right (as the case may be) may be
exercised.
EXERCISE PERIOD means, in relation to an Option or a Performance Right, the
latest period at the end of which that Option or Performance Right will
lapse.
EXERCISE PRICE means:
(a) in relation to a Performance Right, the amount payable on exercise of
that Performance Right, as determined by the Board and specified in
the Invitation and adjusted in accordance with paragraph 7 of schedule
2. If no determination is made, the applicable Exercise Price is nil;
or
(b) in relation to an Option, the amount payable on exercise of that
Option, as specified in the Invitation and adjusted in accordance with
paragraph 7 of schedule 1, but may not be less than twenty cents for
each Share to be acquired on exercise of the Option.
FAIR MARKET VALUE means the fair market value of Shares, Awards or other
property as determined by the Remuneration Committee, or under procedures
established by the Remuneration Committee. Unless otherwise determined by
the Remuneration Committee, the Fair Market Value of a Share as of any
given date shall be the "Closing Price" (as defined below) of the Share on
that reference date. For these purposes the "Closing Price" of a Share on
any day shall be the closing sale price per Share reported on a
consolidated basis for stock listed on the principal stock exchange or
market on which Shares are traded on the date immediately preceding the
date as of which such value is
being determined or, if there is no sale on that date, then on the last
previous day on which a sale was reported.
GENERAL MEETING has the meaning given in the Articles of Association.
GRANT DATE means, in relation to an Option or a Performance Right, the date
on which that Option or Performance Right is granted.
GROUP means the Company and each of its Subsidiaries.
GROUP COMPANY means the Company or any of its Subsidiaries.
INCENTIVE STOCK OPTION means any Option intended to be designated as an
incentive stock option within the meaning of Section 422 of the U.S.
Revenue Code or any successor provision thereto.
INDEPENDENT DIRECTORS, when referring to either the Board or members of the
Remuneration Committee, shall have the same meaning as used in the rules of
the New York Stock Exchange or any U.S national securities exchange on
which any securities of the Company are listed for trading, and if not
listed for trading on any such U.S exchange, by the rules of the New York
Stock Market.
INVITATION means an invitation to apply for Options, Performance Rights,
Performance Shares or an Award under the Plan made in accordance with rule
2.2.
LISTING RULES means the Listing Rules of ASX, except to the extent of any
express waiver by ASX.
MARKET PARTICIPANT has the meaning given in the ASTC Settlement Rules.
MARKET VALUE means the market value of a Share determined under section
139FA of the Tax Act.
MINIMUM RESTRICTION CONDITION means in respect of a Performance Share, any
condition (other than a Performance Condition) which the Board may impose
that must be satisfied or waived before the Performance Share is vested in
its holder.
NET INCOME means, in respect of a Year of Income of the Performance Share
Plan, an amount which the Trustee determines to be the "net income" (as
defined in section 95 of the Tax Act) of the Trust for that Year of Income.
NOTICE OF WITHDRAWAL OF SHARES means a duly completed and executed written
request by a Participant to the Trustee (in a form approved by the Board)
to:
(a) transfer to, or on behalf of, the Participant some or all of the
Participant's Shares; or
(b) sell, on behalf of the Participant, some or all of the Participant's
Shares.
OPTION means a right to acquire a Share granted under schedule 1.
PARTICIPANT means an Executive to whom an Option, a Performance Right, a
Performance Share or an Award (as the case may be) has been granted and who
has not ceased to be a Participant under rule 2.10 and includes a legal
personal representative of the Participant.
PARTICIPANT SHARES means, in relation to a Participant, the Performance
Shares held by the Trustee on behalf of the Participant which stand to the
credit of the Share Account of that Participant, and PARTICIPANT'S SHARE(S)
has a corresponding meaning.
PARTICIPATING COMPANY means each Group Company to which the Board resolves
that the Plan extends.
PAYOUT means the amount calculated in accordance with the formula set out
in the Invitation for an Award.
PAYOUT DATE means:
(a) the date determined by the Board and set out in the Invitation to an
Executive under paragraph 1 of schedule 4; or
(b) where the Participant qualifies for a Payout under paragraph 3.3(b) of
schedule 4, such other date specified by the Board in writing,
and must be within 60 days of the date on which the Participant qualifies
for the Payout.
PAYOUT QUALIFICATION CONDITION means, in respect of a Payout, any condition
(other than a Payout Vesting Condition) which the Board may impose that
must be satisfied or waived for the Participant to have a right to receive
that Payout, including satisfaction of a performance hurdle.
PAYOUT VESTING CONDITION means, in respect of a Payout, a condition which
must be satisfied or waived before the right to receive that Payout becomes
vested in its holder.
PERFORMANCE CONDITION means, in respect of a Performance Share, any
condition which must be satisfied or waived before the Participant may
withdraw Performance Shares from the Performance Share Plan.
PERFORMANCE PERIOD means that period established by the Remuneration
Committee at the time any Option, Performance Right, Performance Share or
Award is granted or at any time thereafter during which any performance
goals specified by the Remuneration Committee with respect to such Option,
Performance Right, Performance Share or Award are to be measured.
PERFORMANCE RIGHT means a right to acquire a Share (by transfer or issue at
the election of the Company) granted under schedule 2.
PERFORMANCE SHARE PLAN means the plan the rules of which are set out in
this document (excluding the rules of the schedules other than schedule 3).
PERFORMANCE SHARES means:
(a) in relation to grants made in accordance with schedule 3, Shares and
CUFS which are held by the Trustee in accordance with these rules for
the purposes of the Performance Share Plan; or
(b) in relation to grants made to U.S. Executives in accordance with
schedule 5, performance shares which are paid to U.S. Executives in
Shares or in a lump sum or in installments under paragraph 4 of
schedule 5.
PLAN means the James Hardie Industries NV Long Term Incentive Plan, the
rules of which are set out in this document.
PLAN EXPENSES means all expenses, outgoings, costs and charges incurred in
the establishment and operation of the Performance Share Plan and includes
any amounts of income or other tax payable by the Trustee in relation to
the Performance Share Plan.
PRESCRIBED EXERCISE DATE means, in relation to an Option or a Performance
Right, the first date on which that Option or Performance Right is
exercisable, subject to the Terms and Conditions of Grant for that Option
or Performance Right.
PRESCRIBED QUALIFICATION DATE means, in relation to a Payout, the date on
which the Participant qualifies for the Payout subject to the Terms and
Conditions of Award for the Payout.
PRESCRIBED WITHDRAWAL DATE means, in relation to a Performance Share, the
first date on which the Participant may submit a Notice of Withdrawal of
Shares in respect of that Performance Share subject to the Terms and
Conditions for that Performance Share.
REDUNDANCY means termination of employment of a Participant by a
Participating Company due to economic, technological, structural or other
organisational change where through no act or default of the Participant:
(a) the Participating Company no longer requires the duties and
responsibilities carried out by the Participant to be carried out by
anyone; or
(b) the Participating Company no longer requires the position held by the
Participant to be held by anyone.
REMUNERATION COMMITTEE means the Remuneration Committee of the Board,
within the meaning of Section 162(m) of the U.S. Revenue Code.
REORGANISATION means any merger, consolidation, reconstruction or other
reorganisation in respect of the Company, including any compromise or
arrangement for the purposes of or in connection with a scheme for the
reconstruction of the Company or its amalgamation with any other company.
RESERVE ACCOUNT means the account established by the Trustee under
paragraph 16.3 of schedule 3.
RETIREMENT means termination of the employment of a Participant with a
Participating Company because:
(a) the Participant attains the age that the Board accepts as the
retirement age for that individual;
(b) the Participant is unable, in the opinion of the Board, to perform his
or her duties because of illness or incapacity.
RIGHTS means any rights or options to acquire Shares or other securities
issued or to be issued by the Company.
SECURITY INTEREST means a mortgage, charge, pledge, lien or other
encumbrance of any nature.
SEPARATION means the termination of a Participant's employment with a
Participating Company by the volition of the Participant and with the
written consent of the Board expressly given for the purposes of the Plan.
SHARE ACCOUNT means, in relation to a Participant, the account maintained
in respect of that Participant under paragraph 16.1 of schedule 3.
SHARES means fully paid ordinary shares in the capital of the Company.
SUBSIDIARY means an entity that is controlled by the Company.
SUPPLEMENTARY CONDITION means, in relation to an Option, a Performance
Right, a Performance Share or an Award, any term or condition (other than
the rules, the Exercise Conditions, the Vesting Conditions, the Minimum
Restriction Conditions, the Performance Conditions, the Payout Vesting
Conditions or the Payout Qualification Conditions) to which that Option,
Performance Right, Performance Share or Award is subject, or to which any
Shares acquired pursuant to the exercise of that Option or Performance
Right will be subject.
TAX ACT means the Income Tax Assessment Act 1936 (Cwlth) and the Income Tax
Assessment Act 1997 (Cwlth), as the context requires.
TERMS AND CONDITIONS means, in relation to a Performance Share, all of:
(a) these rules (other than the schedules);
(b) the rules of schedule 3;
(c) any Minimum Restriction Condition;
(d) any Performance Condition; and
(e) any Supplementary Condition.
TERMS AND CONDITIONS OF AWARD means, in relation to an Award, all of:
(a) these rules (other than the schedules);
(b) the rules of schedule 4;
(c) any Payout Vesting Condition;
(d) any Payout Qualification Condition; and
(e) any Supplementary Condition.
TERMS AND CONDITIONS OF GRANT means, in relation to an Option or a
Performance Right, all of:
(a) these rules (other than the schedules);
(b) the rules of schedule 1 or 2 respectively;
(c) any Vesting Condition;
(d) any Exercise Condition; and
(e) any Supplementary Condition.
TRANCHE means a number of Options or Performance Rights (as the case may
be) which have the same Prescribed Exercise Date.
TRUST means the James Hardie Industries NV Long Term Incentive Plan Trust
established in relation to Performance Shares issued in accordance with
schedule 3, by the trust deed dated on or about the date of these rules
between the Company and the Trustee.
TRUST DEED means the trust deed constituting the Trust on terms approved by
the Board and dealing with the matters contained in schedule 3.
TRUSTEE means the trustee to be established by the Company prior to the
first issue of Performance Shares under schedule 3.
U.S. EXCHANGE ACT means the Securities Exchange Act of 1934, as amended
from time to time, including rules thereunder and successor provisions and
rules thereto.
U.S. EXECUTIVE means an Executive of the Company who is subject to taxation
in respect of Options, Performance Rights, Performance Shares or Awards in
the United States.
U.S. REVENUE CODE means the U.S. Internal Revenue Code of 1986, as amended.
VESTING CONDITION means, in relation to an Option or a Performance Right, a
condition which must be satisfied or waived before that Option or
Performance Right becomes vested in its holder.
VESTED AWARDS means an Award in respect of which Payout Vesting Conditions
have been satisfied.
VESTED OPTIONS means an Option in respect of which Vesting Conditions have
been satisfied.
VESTED PERFORMANCE RIGHT means a Performance Right in respect of which
Vesting Conditions have been satisfied.
YEAR OF INCOME means a period of 12 months ending on 30 June in any year
and includes the period commencing on the date of these rules and
terminating on the next 30 June and the period ending on the date of
termination of the Plan and commencing on the preceding 1 July.
8.2 INTERPRETATION
In these rules, unless the contrary intention appears:
(a) words importing the singular include the plural and vice versa;
(b) subject to paragraphs (c), and (d), references to these rules, or any
particular rule or paragraph of these rules, means these rules, or the
relevant rule or paragraph, as amended from time to time'
(c) in a schedule, references to "these rules" and any particular
paragraph of these rules exclude the paragraphs of the schedules other
than the paragraphs of that schedule;
(d) in:
(i) schedules 1 and 2, references to the rules includes a reference
to any Vesting Condition, any Exercise Condition and any
Supplementary Condition;
(ii) schedule 3, references to the rules includes a reference to any
Minimum Restriction Condition, any Performance Condition and any
Supplementary Condition;
(iii) schedule 4, references to the rules includes a reference to any
Payout Vesting Condition, any Payout Qualification Condition and
any Supplementary Condition;
(e) the references to Share in the definition of an Option and Performance
Right in rule 8.1 include a reference to a Share resulting from an
adjustment;
(f) references to a statute or other law include regulations and other
instruments under it and consolidations, amendments, re-enactments or
replacements of any of them;
(g) references to the exercise of a power or discretion include a decision
not to exercise the power or discretion;
(h) references to a "year" mean any period of 12 months;
(i) the words "include", "including" or "such as" are not used as, nor are
they to be interpreted as words of limitation, and when introducing a
list of items does not exclude a reference to other items whether of
the same class or genus or not;
(j) "Australian dollars", "dollars", "A$" or "$" is a reference to the
lawful currency of Australia;
(k) law means common law, principles of equity, and laws made by
parliament (and laws made by parliament include parliamentary laws and
regulations and other instruments under them, and consolidations,
amendments, re-enactments or replacements of any of them);
(l) a group of persons or things is a reference to any two or more of them
jointly and to each of them individually;
(m) if a period of time dates from a given day or the day of an act or
event, it is to be calculated exclusive of that day;
(n) if an act under this agreement to be done by a party on or by a given
day is done after 5.30pm on that day, it is taken to be done on the
next day.
8.3 HEADING
Headings are for convenience only and, except where they are inserted as a
means of cross-reference, do not affect the interpretation of these rules.
LONG TERM INCENTIVE PLAN
Schedule 1 - Options
1 INVITATION TO APPLY FOR OPTIONS
An Invitation to an Executive to apply for Options may be on such terms and
conditions as the Board decides from time to time, including as to:
(a) the number of Options for which that Executive may apply;
(b) the amount payable (if any) for the grant of an Option or how it is
calculated;
(c) the Exercise Price (if any) or how it is calculated;
(d) the Prescribed Exercise Date or how it is calculated;
(e) any Vesting Condition;
(f) any Exercise Condition;
(g) any Supplementary Condition; and
(h) the Exercise Period or how it is calculated.
2 GRANT OF OPTIONS
2.1 COMPANY TO GRANT OPTIONS
On receipt of an application for Options, the Company at the discretion of
the Board may grant Options to the Executive specified in the Invitation,
subject to the Terms and Conditions of Grant.
2.2 CERTIFICATE OR STATEMENT
Following the grant of Options under paragraph 2.1, the Company will issue
to the Participant a certificate and/or other document that states or
together state with respect to that grant:
(a) the number of Options granted;
(b) the Exercise Price;
(c) the Grant Date;
(d) where the Options are comprised in two or more Tranches, the number of
Options in each Tranche;
(e) the Prescribed Exercise Date;
(f) the Exercise Period; and
(g) other terms and conditions (if any) as determined by the Board.
2.3 RESTRICTIONS ON DEALING WITH OPTIONS
A Participant may not sell, assign, transfer or otherwise deal with, or
grant a Security Interest over, an Option granted to the Participant. The
Option lapses immediately on purported sale, assignment, transfer, dealing
or grant of Security Interest, unless the Board in its absolute discretion
approves the dealing, or the transfer or transmission is effected by force
of law on death or legal incapacity to the Participant's legal personal
representative.
3 REGISTER OF OPTIONS
Unless the Board determines otherwise, Options granted under these rules
(and Shares issued on their exercise) will be registered in the appropriate
register of the Company.
4 EXERCISE OF OPTIONS
4.1 MANNER OF EXERCISE
Unless otherwise prohibited from doing so under this paragraph 4, or unless
the Option has lapsed, a Participant may exercise a Participant's Option:
(a) in accordance with the Terms and Conditions of Grant; and
(b) by paying the Exercise Price to or as directed by the Company.
The total Exercise Price payable by a Participant on exercise of Options is
the Exercise Price of an Option (expressed in cents to one decimal place)
multiplied by the number of Options being exercised by that Participant,
rounded up to the nearest cent.
4.2 VESTING CONDITIONS AND EXERCISE CONDITION
Subject to paragraph 6, if an Option is subject to a Vesting Condition
and/or an Exercise Condition, it may not be exercised unless all Vesting
Conditions and Exercise Conditions are satisfied (and in any situation
referred to in paragraph 4.3(b)(i), is satisfied at the time of death or
other cessation of employment), and then only to the extent permitted by
the Exercise Condition.
4.3 EXERCISE DATE
A Participant may exercise an Option only on or after:
(a) the Prescribed Exercise Date for the Option; or
(b) any earlier date on which the Participant is entitled to exercise the
Option:
(i) under this paragraph 4 dealing with the Participant's death or
otherwise ceasing to be employed by a Group Company, and with
situations where the employer ceases to be a Group Company or the
business in which the Participant is employed is transferred; or
(ii) under paragraph 6 dealing with takeover bids, change of control,
court orders, Reorganisation and winding up.
4.4 LIFE OF OPTION
Notwithstanding any other provision of these rules, the latest date on
which an Option lapses is the date of expiry of the Exercise Period.
4.5 OPTION WILL LAPSE EARLIER ON DEATH OR CESSATION OF EMPLOYMENT
Unless the Exercise Period expires at an earlier date or the Terms of Issue
provide otherwise, a Participant's Option lapses on the latest of:
(a) the expiry of 24 months after the Participant's death, if death occurs
before the Option lapses under paragraph (b), (c) or (d);
(b) the expiry of 24 months after the Participant ceases to be employed by
a Group Company by reason of Retirement or permanent disability;
(c) the expiry of 3 months after the Participant ceases to be employed by
a Group Company for any other reason; and
(d) if the Board extends the time during which the Option may be exercised
under paragraph 4.8, the expiry of that time,
provided that if the Board issues a notice under paragraph 4.6 or 4.7
advising the Participant that a Vested Option has lapsed, the Option is
deemed to have lapsed on the date of death or cessation of employment (as
the case may be) and the Company has no obligation to issue the Shares to
which the Vested Option relates following any purported exercise of the
Vested Option.
4.6 EXERCISE OF OPTIONS ON PARTICIPANT'S DEATH
If a Participant dies before exercising an Option, at a time when the
individual:
(a) is still an employee of a Group Company; or
(b) having ceased to be employed by a Group Company, falls within the
terms of paragraph 4.7,
then (subject to the other provisions of this paragraph 4), the Participant
may:
(c) exercise a Vested Option at any time from the date of death until it
lapses pursuant to paragraph 4.4 or 4.5, except a Vested Option is
deemed to have lapsed on the date of death where the Board reasonably
determines and provides notice to the Participant in writing that the
Vested Option has lapsed and the Company has no
obligation to issue the Shares to which the Vested Option relates
following any purported exercise of the Vested Option; or
(d) if permitted by the Board in writing, exercise an Option that is not a
Vested Option at any time from the date of death until it lapses.
4.7 EXERCISE OF AN OPTION ON CEASING TO BE EMPLOYED BY A GROUP COMPANY
If, before exercising an Option, a Participant ceases to be employed by a
Group Company (other than by reason of his or her death), then (subject to
the other provisions of this paragraph 4):
(a) if the employment ceases by reason of Retirement, Redundancy,
Separation or otherwise for termination by the relevant Group Company
other than in circumstances set out in paragraph 4.11 the Participant
may:
(i) exercise a Vested Option at any time from the date of cessation
of employment until it lapses pursuant to paragraph 4.4 or 4.5,
except a Vested Option is deemed to have lapsed on the date of
cessation of employment where the Board reasonably determines and
provides notice to the Participant in writing that the Vested
Option has lapsed and the Company has no obligation to issue the
Shares to which the Vested Option relates following any purported
exercise of the Vested Option; or
(ii) if permitted by the Board in writing, exercise an Option that is
not a Vested Option from the date of cessation of employment
until it lapses; or
(b) if the employment ceases for a reason other than Retirement,
Redundancy, Separation or otherwise for termination by the relevant
Group Company other than in circumstances set out in paragraph 4.11
the Participant may exercise any unexercised Option at any time from
the date of cessation until it lapses, only if permitted by the Board
in writing.
4.7A Notwithstanding any other provisions of these rules, a Participant may not
exercise an Option which has lapsed.
4.8 BOARD MAY EXTEND TIME FOR EXERCISE BY PARTICIPANT
The Board may, in writing, extend a period during which a Participant may
exercise an Option under these rules, except the Exercise Period.
4.9 INDIVIDUAL NOT TREATED AS CEASING TO BE AN EMPLOYEE
For the purposes of this paragraph 4, a Participant:
(a) is not treated as ceasing to be an employee of a Group Company unless
and until the individual is no longer an employee of any Group
Company, whether or not in the same capacity as at the time the Option
was granted; and
(b) subject to paragraph 4.10, is not treated as ceasing to be an employee
of a Group Company if the individual is no longer an employee of any
Group Company because:
(i) the individual's employer ceases to be a Group Company, whether
or not, after the cessation, the individual remains an employee
of that employer; or
(ii) the individual is an employee of a business that is transferred
to a person that is not a Group Company.
4.10 OPTION LAPSES IF EMPLOYER CEASES TO BE A GROUP COMPANY OR ON CHANGE IN
OWNERSHIP OF BUSINESS
If a Participant is no longer an employee of a Group Company because of
circumstances set out in paragraph 4.9(b)(i) or (ii), then the Options
lapse upon this occurring except where otherwise determined by the Board in
writing, in which case the Participant's Options lapse on the latest of:
(a) the expiration of 24 months after the date of the cessation or
transfer (as the case may be);
(b) if the Board extends the period during which the Option may be
exercised under paragraph 4.8, the expiration of that time; and
(c) if the Participant dies before the Option lapses under paragraph (a)
or (b), the expiration of 24 months after the individual's death.
4.11 OPTION MAY LAPSE IN THE CASE OF FRAUD OR DISHONESTY
If, in the opinion of the Board, a Participant:
(a) has committed (or it is evident the Participant intends to commit),
any act (whether by omission or commission) which amounts or would
amount to any of dishonesty, fraud, wilful misconduct, wilful breach
of duty, serious and wilful negligence or incompetence in the
performance of the Participant's duties; or
(b) is convicted of a criminal offence (other than a minor motor traffic
offence or other trivial offence which does not impact on the
Participant's good fame and character or ability to perform his/her
duties) or is guilty of any other wilful or recklessly indifferent
conduct which, in the reasonable opinion of the Board, may injure or
tend to injure the reputation and/or the business or operations of a
Group Company,
the Board may declare that any unexercised Option has lapsed, and the
Option lapses accordingly.
4.12 NO EXERCISE OF OPTION ON BANKRUPTCY
It is a condition precedent to the exercise of an Option that if the
Participant is an individual, the Participant is not bankrupt and has not
committed an act of bankruptcy or, if the Participant is deceased, the
Participant's estate is not
bankrupt or if the Participant is not an individual, the Participant is not
insolvent or subject to a resolution or order for winding up.
4.13 DISCRETION TO DETERMINE THAT OPTIONS WILL NOT LAPSE
Notwithstanding any other paragraph in this Schedule 1, if a Participant
ceases employment with the Company for any reason, or gives notice of their
intention to cease employment with the Company, the Board may in its
absolute discretion (on any conditions which it thinks fit) decide that
some or all of the unvested Options held by the participant do not lapse,
but lapse at the time and subject to the conditions it may specify by
notice to the Participant, which may include one or more of the following:
(a) that the period to which any Vesting Condition and / or any Exercise
Condition relates is reduced to a period shorter than that which would
otherwise apply;
(b) that the Vesting Criteria applicable to an Option be waived; and
(c) that an Option which vests in accordance with the terms and conditions
specified in the notice may be exercised within the period specified
in paragraph 4.5 or any shorter period specified in the notice.
5 DELIVERY OF SHARES ON EXERCISE OF OPTIONS
5.1 ISSUE
Subject to paragraphs 5.4 and 5.5 within 15 Business Days after the
exercise of a Participant's Options, the Company will issue to the
Participant the number of Shares comprised in each Option (expressed to
four decimal places) multiplied by the number of Options exercised by that
Participant rounded down to the nearest whole number of Shares. Subject to
the Listing Rules, if a Participant requests that they are allocated CUFS
in respect of the Shares issued, the Company will do everything practicable
to promptly facilitate the issue of CUFS to the Participant in respect of
those Shares.
5.2 SHARES ISSUED BY THE COMPANY TO RANK PARI PASSU
All Shares issued on the exercise of a Participant's Options will rank pari
passu in all respects with the Shares of the same class for the time being
on issue except for any rights attaching to the Shares by reference to a
record date prior to the date of their allotment.
5.3 SHARES TO BE QUOTED ON ASX
If Shares of the same class as those issued on the exercise of a
Participant's Options are quoted on the ASX, the Company will apply to the
ASX as required by the Listing Rules for those Shares to be quoted.
5.4 RESTRICTION AS TO DEALING
Where the Shares referred to in paragraph 5.1 are subject (pursuant to the
Terms and Conditions of Grant) to any restriction as to disposal or other
dealing by the Participant for any period, the Board may implement any
procedure it deems appropriate that complies with Applicable Regulations to
ensure compliance by the Participant with this restriction.
5.5 PARTICIPANT'S AGREEMENT
By applying for and being granted Options under these rules, each
Participant undertakes that while the Shares acquired by the Participant as
a result of the exercise of Options are subject to any restriction
procedure prescribed under paragraph 5.4, the Participant will not take any
action or permit another person to take any action to remove the
restriction procedure.
5.6 EXPIRY OF RESTRICTION
Upon the expiry of any restriction over a Share, the Company will take all
actions necessary to ensure that the Participant can deal with the Share.
6 TAKEOVER, REORGANISATION AND WINDING-UP
6.1 OPTIONS MAY BE EXERCISED AT A TIME EARLIER THAN THE PRESCRIBED EXERCISE
DATE
If, under any of the following provisions of this paragraph 6 (in
connection with a takeover bid, change of control, proposed Reorganisation
or winding up) the Board, in its absolute discretion, gives notice that a
Participant may exercise any or all of the Participant's Options as
determined by the Board within a particular time, then, subject to the
applicable provisions of paragraph 4 (except paragraph 4.2) and to
paragraph 6.7, the Participant may exercise those Options within that time
in addition to any other period during which the Options may be exercised.
6.2 TAKEOVER BID
If a takeover bid is made to acquire any Shares, at any time any offers
under a takeover bid remain open for acceptance, the Board may give written
notice of the bid to each Participant, stating that any or all of the
Participant's Options as determined by the Board may be exercised within 30
days from the date of the notice.
6.3 APPLICATION TO THE COURT
If the Board determines that an application is to be made to a court for a
meeting to be held as described in paragraph 6.5, the Board may give
written notice of the application to each Participant, stating that any or
all of the Participant's Options as determined by the Board may be
exercised up to five Business Days before the hearing of the application.
6.4 CHANGE OF CONTROL
If, pursuant to a takeover bid or otherwise, any person together with their
associates acquire Shares, which when aggregated with Shares already
acquired by such person and their associates, comprise more than 30% of the
issued Shares of the Company, the Board may give written notice to each
Participant permitting the Participant to exercise any or all the
Participant's
Options as determined by the Board within 60 days or such reasonable longer
period as approved by the Board from the last date when any of the Shares
referred to were so acquired.
6.5 MEETING TO CONSIDER A REORGANISATION
If, pursuant to the Articles of Association, Applicable Regulations or
otherwise, the Board determines to convene a General Meeting or other
meeting of holders of the Company's securities or a meeting of the
Company's creditors, or a court orders such a meeting, to be held in
relation to a proposed Reorganisation, the Board may give written notice to
each Participant permitting the Participant to exercise the Participant's
Options before the time of the meeting.
6.6 COMPULSORY ACQUISITION, REORGANISATION OR WINDING UP
If:
(a) a person becomes bound or entitled to compulsorily acquire Shares
under the Articles of Association or Applicable Regulations;
(b) a Reorganisation is sanctioned by one or more of the following under
the Articles of Association, Applicable Regulations or otherwise:
(i) a court;
(ii) a General Meeting or other meeting of holders of the Company's
securities; or
(iii) a meeting of the Company's creditors; or
(c) the Company passes a resolution for voluntary winding up or an order
is made for the compulsory winding up of the Company,
then the Board may give written notice to each Participant permitting the
Participant to exercise the Participant's Options within a specified period
of up to 30 days after the occurrence of the relevant event.
6.7 OPTIONS LAPSE COMPULSORY ACQUISITION, REORGANISATION OR WINDING UP
If a Participant becomes entitled to exercise the Participant's Options
under paragraph 6.6 then, notwithstanding any other provision in these
rules, all Options lapse on the expiration of the specified period allowed
for exercise.
7 ADJUSTMENT OF OPTIONS
7.1 BONUS ISSUE
If the Company makes a bonus issue of Shares pro rata to shareholders
(other than an issue in lieu or in satisfaction of dividends or by way of
dividend reinvestment) and no Shares have been allotted in respect of an
Option before the record date for determining entitlements to the bonus
issue then number of Shares over which the Option is exercisable will be
increased by the
number of Shares which the Participant would have received if the
Option had been exercised before the record date for the bonus issue.
7.2 RIGHTS ISSUE
If:
(a) Shares are offered pro rata for subscription by the Company's
shareholders generally by way of a rights issue; and
(b) the price at which each Share is so offered is less than the Market
Value on the day of public announcement of the rights issue,
the Exercise Price of each Option is reduced according to the following
formula unless the Exercise Price of the Option is nil:
O' = O - E[P-(S+D)]
----------
N + 1
where:
O' = the new Exercise Price of the Option
O = the old Exercise Price of the Option
E = the number of Shares to which a Participant is entitled under one
Option
P = the average market price per Share (weighted by reference to
volume) sold in the ordinary course of trading on the ASX during
the 5 trading days ending on the day before the ex rights date or
ex entitlements date
S = the subscription price for a Share under the pro rata issue
D = the dividend due but not yet paid on the existing Shares (except
those to be issued under the pro rata issue)
N = the number of Shares with rights or entitlements that must be
held to receive a right to one new Share.
7.3 SUB-DIVISION, CONSOLIDATION, REDUCTION OR RETURN
If there is any reorganisation, including any subdivision, consolidation,
reduction or return of the issued capital of the Company, the number of
Options to which each Participant is entitled or the Exercise Price (if
any), or both, will be adjusted in the way specified by the Listing Rules
from time to time.
7.4 LIMITED RIGHT TO PARTICIPATE IN NEW ISSUES
Subject to the preceding paragraphs, during the currency of a Participant's
Option and before its exercise, the Participant is not entitled to
participate in any new issue of securities of the Company as a result of
holding the Option.
7.5 CUMULATION OF ADJUSTMENTS
Full effect must be given to these paragraphs 7.1, 7.2 and 7.3 as and when
occasions of their application arise and in such manner that the effects of
the successive applications of them are cumulative, the intention being
that the adjustments they progressively effect must be such as to reflect
in relation to the Shares comprised in an Option the adjustments which on
the occasions in question are progressively effective in relation to Shares
already on issue. All adjustment calculations are to be to four decimal
places and in the case of the Exercise Price (if any), to four decimal
places expressed in cents.
Unless otherwise provided in these rules, a Participant has no right to:
(a) change the Exercise Price of the Option; or
(b) change the number of Shares over which the Option can be exercised.
LONG TERM INCENTIVE PLAN
Schedule 2 - Performance Rights
1 INVITATION TO APPLY FOR PERFORMANCE RIGHTS
An Invitation to an Executive to apply for Performance Rights may be made
on such terms and conditions as the Board decides from time to time,
including as to:
(a) the number of Performance Rights for which that Executive may apply;
(b) the amount payable (if any) for the grant of a Performance Right or
how it is calculated;
(c) the Exercise Price (if any) or how it is calculated;
(d) the Prescribed Exercise Date or how it is calculated;
(e) any Vesting Condition;
(f) any Exercise Condition;
(g) any Supplementary Condition; and
(h) the Exercise Period or how it is calculated.
2 GRANT OF PERFORMANCE RIGHTS
2.1 COMPANY TO GRANT PERFORMANCE RIGHTS
On receipt of an application for Performance Rights, the Company at the
discretion of the Board may grant Performance Rights to the Executive
specified in the Invitation, subject to the Terms and Conditions of Grant.
2.2 CERTIFICATE OR STATEMENT
Following the grant of Performance Rights under paragraph 2.1, the Company
will issue to the Participant a certificate and/or other document that
states or together state with respect to that grant:
(a) the number of Performance Rights granted;
(b) the Exercise Price;
(c) the Grant Date;
(d) where the Performance Rights are comprised in two or more Tranches,
the number of Performance Rights in each Tranche;
(e) the Prescribed Exercise Date;
(f) the Exercise Period; and
(g) other terms and conditions (if any) as determined by the Board.
2.3 RESTRICTION ON DEALING
A Participant may not sell, assign, transfer or otherwise deal with, or
grant a Security Interest over, a Performance Right granted to the
Participant. The Performance Right lapses immediately on purported sale,
assignment, transfer, dealing or grant of Security Interest, unless the
Board in its absolute discretion approves the dealing or the transfer or
transmission is effected by force of law on death or legal incapacity to
the Participant's legal personal representative.
3 REGISTER OF PERFORMANCE RIGHTS
Unless the Board determines otherwise, Performance Rights granted under
these rules (and Shares issued or transferred to the relevant Participant
on their exercise) will be registered in the appropriate register of the
Company.
4 EXERCISE OF PERFORMANCE RIGHTS
4.1 MANNER OF EXERCISE
Unless otherwise prohibited from doing so under this paragraph 4, or unless
the Performance Right has lapsed, a Participant may exercise a
Participant's Performance Right:
(a) in accordance with the Terms and Conditions of Grant; and
(b) by paying the Exercise Price (if any) to or as directed by the
Company.
The total Exercise Price (if any) payable by a Participant on exercise of
Performance Rights is the Exercise Price of a Performance Right (if any)
(expressed in cents to one decimal place) multiplied by the number of
Performance Rights being exercised by that Participant, rounded up to the
nearest cent.
4.2 VESTING CONDITIONS AND EXERCISE CONDITION
Subject to paragraph 6, if a Performance Right is subject to a Vesting
Condition and/or an Exercise Condition, it may not be exercised unless all
Vesting Conditions and Exercise Conditions are satisfied (and in any
situation referred to in paragraph 4.3(b)(i), is satisfied at the time of
death or other cessation of employment), and then only to the extent
permitted by the Exercise Condition.
4.3 EXERCISE DATE
A Participant may exercise a Performance Right only on or after:
(a) the Prescribed Exercise Date for the Performance Right; or
(b) any earlier date on which the Participant is entitled to exercise the
Performance Right:
(i) under this paragraph 4 dealing with the Participant's death or
otherwise ceasing to be employed by a Group Company, and with
situations where the employer ceases to be a Group Company or the
business in which the Participant is employed is transferred; or
(ii) under paragraph 6 dealing with takeover bids, change of control,
Reorganisation and winding up.
4.4 LIFE OF PERFORMANCE RIGHT
Notwithstanding any other provision of these rules, the latest date on
which a Performance Right lapses is the date of expiry of the Exercise
Period.
4.5 PERFORMANCE RIGHT WILL LAPSE EARLIER ON DEATH OR CESSATION OF EMPLOYMENT
Unless the Exercise Period expires at an earlier date or the Terms of Issue
provide otherwise, a Participant's Performance Right lapses on the latest
of:
(a) the expiry of 24 months after the Participant's death, if death occurs
before the Performance Right lapses under paragraph (b), (c) or (d);
(b) the expiry of 24 months after the Participant ceases to be employed by
a Group Company by reason of Retirement or permanent disability;
(c) the expiry of 3 months after the Participant ceases to be employed by
a Group Company for any other reason; and
(d) if the Board extends the time during which the Performance Right may
be exercised under paragraph 4.8, the expiry of that time,
provided that if the Board issues a notice under paragraph 4.6 or 4.7
advising the Participant that a Vested Performance Right has lapsed, the
Performance Right is deemed to have lapsed on the date of death or
cessation of employment (as the case may be) and the Company has no
obligation to issue or cause to be transferred the Shares to which the
Vested Performance Right relates following any purported exercise of the
Vested Performance Right.
4.6 EXERCISE OF PERFORMANCE RIGHTS ON PARTICIPANT'S DEATH
If a Participant dies before exercising a Performance Right, at a time when
the individual:
(a) is still an employee of a Group Company; or
(b) having ceased to be employed by a Group Company, falls within the
terms of paragraph 4.7,
then (subject to the other provisions of this paragraph 4), the Participant
may:
(c) exercise a Vested Performance Right at any time from the date of death
until it lapses pursuant to paragraph 4.4 or 4.5, except a Vested
Performance Right is deemed to have lapsed on the date of death where
the Board reasonably determines and provides notice to the Participant
in writing that the Vested Performance Right has lapsed and the
Company has no obligation to issue or cause to be transferred the
Shares to which the Vested Performance Right relates following any
purported exercise of the Vested Performance Right; or
(d) if permitted by the Board in writing, exercise a Performance Right
that is not a Vested Performance Right at any time from the date of
death until it lapses.
4.7 EXERCISE OF A PERFORMANCE RIGHT ON CEASING TO BE EMPLOYED BY A GROUP
COMPANY
If, before exercising a Performance Right, a Participant ceases to be
employed by a Group Company (other than by reason of his or her death),
then (subject to the other provisions of this paragraph 4):
(a) if the employment ceases by reason of Retirement, Redundancy,
Separation or otherwise for termination by the relevant Group Company
other than in circumstances set out in paragraph 4.11 the Participant
may:
(i) exercise a Vested Performance Right at any time from the date of
cessation of employment until it lapses pursuant to paragraph 4.4
or 4.5, except a Vested Performance Right is deemed to have
lapsed on the date of cessation of employment where the Board
reasonably determines and provides notice to the Participant in
writing that the Vested Performance Right has lapsed and the
Company has no obligation to issue or cause to be transferred the
Shares to which the Vested Performance Right relates following
any purported exercise of the Vested Performance Right; or
(ii) if permitted by the Board in writing, exercise a Performance
Right that is not a Vested Performance Right from the date of
cessation of employment until it lapses; or
(b) if the employment ceases for a reason other than Retirement,
Redundancy, Separation or otherwise for termination by the relevant
Group Company other than in circumstances set out in paragraph 4.11
the Participant may exercise any unexercised Performance Right at any
time from the date of cessation until it lapses, only if permitted by
the Board in writing.
4.7A Notwithstanding any other provisions of these rules, a Participant may not
exercise a Performance Right which has lapsed.
4.8 BOARD MAY EXTEND TIME FOR EXERCISE BY PARTICIPANT
The Board may, in writing, extend a period during which a Participant may
exercise a Performance Right under these rules, except the Exercise Period.
4.9 INDIVIDUAL NOT TREATED AS CEASING TO BE AN EMPLOYEE
For the purposes of this paragraph 4, a Participant:
(a) is not treated as ceasing to be an employee of a Group Company unless
and until the individual is no longer an employee of any Group
Company, whether or not in the same capacity as at the time the
Performance Right was granted; and
(b) subject to paragraph 4.10, is not treated as ceasing to be an employee
of a Group Company if the individual is no longer an employee of any
Group Company because:
(i) the individual's employer ceases to be a Group Company, whether
or not, after the cessation, the individual remains an employee
of that employer; or
(ii) the individual is an employee of a business that is transferred
to a person that is not a Group Company.
4.10 PERFORMANCE RIGHT LAPSES IF EMPLOYER CEASES TO BE A GROUP COMPANY OR ON
CHANGE IN OWNERSHIP OF BUSINESS
If a Participant is no longer an employee of a Group Company because of
circumstances set out in paragraph 4.9(b)(i) or (ii), then the Performance
Rights lapse upon this occurring except where otherwise determined by the
Board in writing, in which case the Participant's Performance Rights lapse
on the latest of:
(a) the expiration of 24 months after the date of the cessation or
transfer (as the case may be);
(b) if the Board extends the period during which the Performance Right may
be exercised under paragraph 4.8, the expiration of that time; and
(c) if the Participant dies before the Performance Right lapses under
paragraph (a) or (b), the expiration of 24 months after the
individual's death.
4.11 PERFORMANCE RIGHT MAY LAPSE IN THE CASE OF FRAUD OR DISHONESTY
If, in the opinion of the Board, a Participant:
(a) has committed (or it is evident the Participant intends to commit),
any act (whether by omission or commission) which amounts or would
amount to any of dishonesty, fraud, wilful misconduct, wilful breach
of duty, serious and wilful negligence or incompetence in the
performance of the Participant's duties; or
(b) is convicted of a criminal offence (other than a minor motor traffic
offence or other trivial offence which does not impact on the
Participant's good fame and character or ability to perform his/her
duties) or is guilty of any other wilful or recklessly indifferent
conduct which, in the reasonable opinion of the Board, may injure or
tend to injure the reputation and/or the business or operations of a
Group Company,
the Board may declare that any unexercised Performance Right has lapsed,
and the Performance Right lapses accordingly.
4.12 NO EXERCISE OF PERFORMANCE RIGHT ON BANKRUPTCY
It is a condition precedent to the exercise of a Performance Right that if
the Participant is an individual, the Participant is not bankrupt and has
not committed an act of bankruptcy or, if the Participant is deceased, the
Participant's estate is not bankrupt or if the Participant is not an
individual, the Participant is not insolvent or subject to a resolution or
order for winding up.
4.13 DISCRETION TO DETERMINE THAT PERFORMANCE RIGHTS WILL NOT LAPSE
Notwithstanding any other paragraph in this Schedule 2, if a Participant
ceases employment with the Company for any reason, or gives notice of their
intention to cease employment with the Company, the Board may in its
absolute discretion (on any conditions which it thinks fit) decide that
some or all of the unvested Performance Rights held by the participant do
not lapse, but lapse at the time and subject to the conditions it may
specify by notice to the Participant, which may include one or more of the
following:
(a) that the period to which any Vesting Condition and / or any Exercise
Condition relates is reduced to a period shorter than that which would
otherwise apply;
(b) that the Vesting Criteria applicable to a Performance Right be waived;
and
(c) that a Performance Right which vests in accordance with the terms and
conditions specified in the notice may be exercised within the period
specified in paragraph 4.5 or any shorter period specified in the
notice.
5 DELIVERY OF SHARES ON EXERCISE OF PERFORMANCE RIGHTS
5.1 ISSUE OR TRANSFER
Subject to paragraphs 5.4 and 5.5 within 15 Business Days after the
exercise of a Participant's Performance Rights, the Company will issue or
cause to be transferred to a Participant the number of Shares comprised in
each Performance Right (expressed to four decimal places) multiplied by the
number of Performance Rights exercised by that Participant rounded down to
the nearest whole number of Shares. Subject to the Listing Rules, if a
Participant requests that they are allocated CUFS in respect of the Shares
issued, the Company will do everything practicable to promptly facilitate
the issue of CUFS to the Participant in respect of those Shares.
5.2 SHARES TO RANK PARI PASSU
All Shares issued or transferred on the exercise of a Participant's
Performance Rights will rank pari passu in all respects with the Shares of
the same class for the time being on issue except for any rights attaching
to the Shares by reference to a record date prior to the date of their
allotment or transfer.
5.3 SHARES TO BE QUOTED ON ASX
If Shares of the same class as those issued on the exercise of a
Participant's Performance Rights are quoted on the ASX, the Company will
apply to the ASX as required by the Listing Rules for those Shares to be
quoted.
5.4 RESTRICTION AS TO DEALING
Where the Shares referred to in paragraph 5.1 are subject (pursuant to the
Terms and Conditions of Grant) to any restriction as to disposal or other
dealing by the Participant for any period, the Board may implement any
procedure it deems appropriate that complies with Applicable Regulations to
ensure compliance by the Participant with this restriction.
5.5 PARTICIPANT'S AGREEMENT
By applying for and being granted Performance Rights under these rules,
each Participant undertakes that while the Shares acquired by the
Participant as a result of the exercise of Performance Rights are subject
to any restriction procedure prescribed under paragraph 5.4, the
Participant will not take any action or permit another person to take any
action to remove the restriction procedure.
5.6 EXPIRY OF RESTRICTION
Upon the expiry of any restriction over a Share, the Company will take all
actions necessary to ensure that the Participant can deal with the Share.
6 TAKEOVER, REORGANISATION AND WINDING-UP
6.1 PERFORMANCE RIGHTS MAY BE EXERCISED AT A TIME EARLIER THAN THE PRESCRIBED
EXERCISE DATE
If, under any of the following provisions of this paragraph 6 (in
connection with a takeover bid, change of control, proposed Reorganisation
or winding u) the Board, in its absolute discretion, gives notice that a
Participant may exercise any or all of the Participant's Performance Rights
as determined by the Board within a particular time, then, subject to the
applicable provisions of paragraph 4 (except paragraph 4.2) and to
paragraph 6.7, the Participant may exercise those Performance Rights within
that time in addition to any other period during which the Performance
Rights may be exercised.
6.2 TAKEOVER BID
If a takeover bid is made to acquire any Shares, at any time any offers
under a takeover bid remain open for acceptance, the Board may give written
notice of the bid to each Participant, stating that any or all of the
Participant's
Performance Rights as determined by the Board may be exercised within 30
days from the date of the notice.
6.3 APPLICATION TO THE COURT
If the Board determines that an application is to be made to a court for a
meeting to be held as described in paragraph 6.5, the Board may give
written notice of the application to each Participant, stating that any or
all of the Participant's Performance Rights as determined by the Board may
be exercised up to five Business Days before the hearing of the
application.
6.4 CHANGE OF CONTROL
If, pursuant to a takeover bid or otherwise, any person together with their
associates acquire Shares, which when aggregated with Shares already
acquired by such person and their associates, comprise more than 30% of the
issued Shares of the Company, the Board may give written notice to each
Participant permitting the Participant to exercise any or all the
Participant's Performance Rights as determined by the Board within 60 days
or such reasonable longer period as approved by the Board from the last
date when any of the Shares referred to were so acquired.
6.5 MEETING TO CONSIDER A REORGANISATION
If, pursuant to the Articles of Association, Applicable Regulations or
otherwise, the Board determines to convene a General Meeting or other
meeting of holders of the Company's securities or a meeting of the
Company's creditors, or a court orders such a meeting, to be held in
relation to a proposed Reorganisation, the Board may give written notice to
each Participant permitting the Participant to exercise the Participant's
Performance Rights before the time of the meeting.
6.6 COMPULSORY ACQUISITION, REORGANISATION OR WINDING UP
If:
(a) a person becomes bound or entitled to compulsorily acquire Shares in
the Company under the Articles of Association or Applicable
Regulations;
(b) a Reorganisation is sanctioned by one or more of the following under
the Articles of Association, Applicable Regulations or otherwise:
(i) a court;
(ii) a General Meeting or other meeting of holders of the Company's
securities; or
(iii) a meeting of the Company's creditors; or
(c) the Company passes a resolution for voluntary winding up or an order
is made for the compulsory winding up of the Company,
then the Board may give written notice to each Participant permitting the
Participant to exercise the Participant's Performance Rights within a
specified period of up to 30 days after the occurrence of the relevant
event.
6.7 PERFORMANCE RIGHTS LAPSE ON COMPULSORY ACQUISITION, REORGANISATION OR
WINDING UP
If a Participant becomes entitled to exercise the Participant's Performance
Rights under paragraph 6.6 then, notwithstanding any other provision in
these rules, all Performance Rights lapse on the expiration of the
specified period allowed for exercise.
7 ADJUSTMENT OF PERFORMANCE RIGHTS
7.1 BONUS ISSUE
If the Company makes a bonus issue of Shares pro rata to shareholders
(other than an issue in lieu or in satisfaction of dividends or by way of
dividend reinvestment) and no Shares have been allotted in respect of a
Performance Right before the record date for determining entitlements to
the bonus issue then number of Shares over which the Performance Right is
exercisable will be increased by the number of Shares which the Participant
would have received if the Performance Right had been exercised before the
record date for the bonus issue.
7.2 RIGHTS ISSUE
If:
(a) Shares are offered pro rata for subscription by the Company's
shareholders generally by way of a rights issue; and
(b) the price at which each Share is so offered is less than the Market
Value on the day of public announcement of the rights issue,
the Exercise Price of each Performance Right is reduced according to the
following formula unless the Exercise Price of the Performance Right is
nil:
O' = O - E[P-(S+D)]
----------
N + 1
where:
O' = the new Exercise Price of the Performance Right
O = the old Exercise Price of the Performance Right
E = the number of Shares to which a Participant is entitled under one
Performance Right
P = the average market price per Share (weighted by reference to volume)
sold in the ordinary course of trading on the ASX during the 5
trading days ending on the day before the ex rights date or ex
entitlements date
S = the subscription price for a Share under the pro rata issue
D = the dividend due but not yet paid on the existing Shares (except those
to be issued under the pro rata issue)
N = the number of Shares with rights or entitlements that must be held to
receive a right to one new Share.
7.3 SUB-DIVISION, CONSOLIDATION, REDUCTION OR RETURN
If there is any reorganisation, including any subdivision, consolidation,
reduction or return of the issued capital of the Company, the number of
Performance Rights to which each Participant is entitled or the Exercise
Price (if any), or both, will be adjusted in the way specified by the
Listing Rules from time to time.
7.4 LIMITED RIGHT TO PARTICIPATE IN NEW ISSUES
Subject to the preceding paragraphs, during the currency of a Participant's
Performance Right and before its exercise, the Participant is not entitled
to participate in any new issue of securities of the Company as a result of
holding the Performance Right.
7.5 CUMULATION OF ADJUSTMENTS
Full effect must be given to these paragraphs 7.1, 7.2 and 7.3 as and when
occasions of their application arise and in such manner that the effects of
the successive applications of them are cumulative, the intention being
that the adjustments they progressively effect must be such as to reflect
in relation to the Shares comprised in a Performance Right the adjustments
which on the occasions in question are progressively effective in relation
to Shares already on issue. All adjustment calculations are to be to four
decimal places and in the case of the Exercise Price (if any), to four
decimal places expressed in cents.
Unless otherwise provided in these rules, a Participant has no right to:
(a) change the Exercise Price of the Performance Right; or
(b) change the number of Shares over which the Performance Right can be
exercised.
Schedule 3 - Performance Shares
1 INVITATION TO APPLY FOR PERFORMANCE SHARES
An Invitation to an Executive to apply for Performance Shares may be made
on such terms and conditions as the Board decides from time to time,
including as to:
(a) the number of Performance Shares or the method of calculating the
number of Performance Shares for which the Executive may apply;
(b) whether the Performance Shares will CUFS or Shares;
(c) the amount payable (if any) for the Performance Shares or how it is
calculated;
(d) the Prescribed Withdrawal Date or how it is calculated;
(e) any Minimum Restriction Condition;
(f) any Performance Condition; and
(g) any Supplementary Condition.
2 ACQUISITION AND ALLOCATION OF SHARES BY TRUSTEE
2.1 CAPITAL CONTRIBUTIONS TO TRUST
On and from commencement of the Performance Share Plan, the Company or any
Subsidiary may pay to the Trustee amounts determined by the Company from
time to time to fund the Performance Share Plan, including acquisition of
Shares and/or CUFS for the purposes of the Performance Share Plan or Plan
Expenses.
2.2 APPLICATION OF CAPITAL CONTRIBUTION
The Trustee may use any amounts received under paragraph 2.1 to acquire
Shares and/or CUFS for the benefit of Participants, as directed from time
to time by the Company. The Trustee must not repay to any Group Company any
amount received as contributions for the acquisition of Shares.
2.3 SHARES AND CUFS HELD FOR PARTICIPANTS
On receipt of an application for Performance Shares, the Company at the
discretion of the Board may cause the Trustee to hold Participant Shares on
behalf of a Participant subject to the Terms of Conditions.
2.4 SHARES AND CUFS REGISTERED IN NAME OF TRUSTEE
Shares or CUFS acquired for a Participant under the Performance Share Plan
are to be registered in the name of the Trustee, or a nominee of the
Trustee, as determined from time to time and must be allocated to the Share
Account of that Participant. A Participant has no rights and obligations
under the Performance Share Plan unless and until Shares or CUFS which are
registered in the name of the Trustee are allocated to that Participant's
Share Account.
2.5 QUOTATION
The Company must apply to ASX for official quotation of any Shares issued
to the Trustee.
2.6 NOTIFICATION TO PARTICIPANT
The Company must ensure that each Participant is notified in writing when
Shares or CUFS are acquired and registered in the name of the Trustee for
the benefit of that Participant and allocated to that Participant's Share
Account.
2.7 NO FRACTIONS
The Trustee must not hold fractions of Shares or CUFS on behalf of a
Participant. Any Shares remaining after the allocation of whole Shares to a
Participant may be held in Reserve Account used by the Trustee to satisfy
future applications made under the Performance Share Plan.
3 RESTRICTIONS ON DEALING WITH PARTICIPANT SHARES
3.1 RESTRICTION ON DEALING
Except as provided in these rules, a Participant may not dispose of, deal
in, or grant a Security Interest over, any interest in their Participant
Shares (whether or not the Shares are subject to Minimum Restriction
Conditions or Performance Conditions).
3.2 ARRANGEMENTS TO ENFORCE RESTRICTION
The Trustee is entitled to make any arrangements it considers necessary to
enforce the restriction in paragraph 3.1 and any Minimum Restriction
Conditions or Performance Conditions, and Participants are bound by those
arrangements and must take any steps reasonably required by the Trustee.
4 DEALING IN PARTICIPANT SHARES
4.1 WITHDRAWAL OF PARTICIPANT SHARES
(a) Unless otherwise prohibited from doing so under this paragraph 4, or
unless the Participant Share has been forfeited, a Participant may
submit a Notice of Withdrawal of Shares in accordance with the Terms
and Conditions.
(b) The Trustee may in its absolute discretion reject a Notice of
Withdrawal of Shares.
4.2 MINIMUM RESTRICTION CONDITIONS AND PERFORMANCE CONDITIONS
Subject to paragraph 9, if a Participant Share is subject to a Minimum
Restriction Condition and/or a Performance Condition, a Participant may not
submit a Notice of Withdrawal of Shares unless all Minimum Restriction
Conditions and Performance Conditions are satisfied (and in any situation
referred to in paragraph 4.3(b)(i), is satisfied at the time of death or
other cessation of employment), and then only to the extent permitted by
the Performance Condition.
4.3 WITHDRAWAL
A Participant may submit a Notice of Withdrawal of Shares only on or after:
(a) the Prescribed Withdrawal Date for the Participant Share; or
(b) any earlier date on which the Participant is entitled submit a Notice
of Withdrawal of Shares:
(i) under this paragraph 4 dealing with the Participant's death or
otherwise ceasing to be employed by a Group Company, and with
situations where the employer ceases to be a Group Company or the
business in which the Participant is employed is transferred; or
(ii) under paragraph 9 dealing with takeover bids, change of control,
court orders, Reorganisations and winding up.
4.4 PARTICIPANT SHARE WILL BE FORFEITED EARLIER ON DEATH OR CESSATION OF
EMPLOYMENT
A Participant's Participant Shares will be forfeited for $1.00 in total
unless the Terms of Issue provide otherwise on the latest of:
(a) the expiry of 24 months after the Participant's death, if death occurs
before the Participant Share is forfeited under paragraph (b), (c) or
(d);
(b) the expiry of 24 months after the Participant ceases to be employed by
a Group Company by reason of Retirement or permanent disability;
(c) the expiry of 3 months after the Participant ceases to be employed by
a Group Company for any other reason; and
(d) if the Board extends the time during which a Notice of Withdrawal of
Shares may be submitted under paragraph 4.7, the expiry of that time,
provided that if the Board issues a notice under paragraph 4.5 or 4.6
advising the Participant that a Participant Share has been forfeited, the
Participant Share is deemed to have been forfeited on the date of death or
cessation of employment (as the case may be) and the Trustee and the
Company has no obligation to comply with a Notice of Withdrawal of Shares
purportedly submitted in respect of that Participant Share.
4.5 WITHDRAWAL ON PARTICIPANT'S DEATH
If a Participant dies before submitting a Notice of Withdrawal of Shares,
at a time when the individual:
(a) is still an employee of a Group Company; or
(b) having ceased to be employed by a Group Company, falls within the
terms of paragraph 4.6,
then (subject to the other provisions of this paragraph 4), the Participant
may:
(c) where the Minimum Restriction Conditions (if any) of a Participant
Share have been satisfied, submit a Notice of Withdrawal of Shares in
respect of that Participant Share at any time from the date of death
until it is forfeited pursuant to paragraph 4.4, except a Participant
Share is deemed to have been forfeited on the date of death where the
Board reasonably determines and provides notice to the Participant in
writing that the Participant Share has been forfeited the Trustee and
the Company has no obligation to comply with a Notice of Withdrawal of
Shares purportedly submitted in respect of that Participant Share; or
(d) where the Minimum Restriction Conditions (if any) of a Participant
Share have not been satisfied, if permitted by the Board in writing,
submit a Notice of Withdrawal of Shares in respect of that Participant
Share at any time from the date of death until it is forfeited.
4.6 WITHDRAWAL ON CEASING TO BE EMPLOYED BY A GROUP COMPANY
If, before submitting a Notice of Withdrawal of Shares, a Participant
ceases to be employed by a Group Company (other than by reason of his or
her death), then (subject to the other provisions of this paragraph 4):
(a) if the employment ceases by reason of Retirement, Redundancy,
Separation or otherwise for termination by the relevant Group Company
other than in circumstances set out in paragraph 4.10 the Participant
may:
(i) where the Minimum Restriction Conditions (if any) of a
Participant Share have been satisfied, submit a Notice of
Withdrawal of Shares in respect of that Participant Share at any
time from the date of cessation of employment until it is
forfeited pursuant to paragraph 4.4, except a Participant Share
is deemed to have been forfeited on the date of cessation of
employment where the Board reasonably determines and provides
notice to the Participant in writing that the Participant Share
has been forfeited and the Trustee and the Company has no
obligation to comply with a Notice of Withdrawal of Shares
purportedly submitted in respect of that Participant Share; or
(ii) where the Minimum Restriction Conditions (if any) of a
Participant Share have not been satisfied, if permitted by the
Board in writing, submit a Notice of Withdrawal of Shares in
respect of that Participant Share from the date of cessation of
employment until it is forfeited; or
(b) if the employment ceases for a reason other than Retirement,
Redundancy, Separation or otherwise for termination by the relevant
Group Company other than in circumstances set out in paragraph 4.10
the Participant may submit a Notice of Withdrawal of Shares at any
time from the date of cessation until it is forfeited, only if
permitted by the Board in writing.
4.7A Notwithstanding any other provisions of these rules, a Participant may not
submit a Notice of Withdrawal of Shares in relation to a Participant Share
under these rules if the Participant Share has been forfeited.
4.7 BOARD MAY EXTEND TIME FOR NOTICE OF WITHDRAWAL OF SHARES
Subject to paragraph 4.13, the Board may, in writing, extend a period
during which a Participant may submit a Notice of Withdrawal of Shares
under these rules.
4.8 INDIVIDUAL NOT TREATED AS CEASING TO BE AN EMPLOYEE
For the purposes of this paragraph 4, a Participant:
(a) is not treated as ceasing to be an employee of a Group Company unless
and until the individual is no longer an employee of any Group
Company, whether or not in the same capacity as at the time the
Participant Share was granted; and
(b) subject to paragraph 4.9, is not treated as ceasing to be an employee
of a Group Company if the individual is no longer an employee of any
Group Company because:
(i) the individual's employer ceases to be a Group Company, whether
or not, after the cessation, the individual remains an employee
of that employer; or
(ii) the individual is an employee of a business that is transferred
to a person that is not a Group Company.
4.9 PARTICIPANT SHARE WILL BE FORFEITED IF EMPLOYER CEASES TO BE A GROUP
COMPANY OR ON CHANGE IN OWNERSHIP OF BUSINESS
If a Participant is no longer an employee of a Group Company because of
circumstances set out in paragraph 4.8(b)(i) or (ii), then the
Participant's Shares are forfeited for a total of $1.00 upon this occurring
except where otherwise determined by the Board in writing, in which case
the Participant's Shares will be forfeited for a total of $1.00 on the
latest of:
(a) the expiration of 24 months after the date of the cessation or
transfer (as the case may be);
(b) if the Board extends the period during which a Notice of Withdrawal of
Shares may be submitted under paragraph 4.7, the expiration of that
time; and
(c) if the Participant dies before the Participant Share is forfeited
under paragraph (a) or (b), the expiration of 24 months after the
individual's death.
4.10 PARTICIPANT SHARE MAY BE FORFEITED IN THE CASE OF FRAUD OR DISHONESTY
If, in the opinion of the Board, a Participant:
(a) has committed (or it is evident the Participant intends to commit),
any act (whether by omission or commission) which amounts or would
amount to any of dishonesty, fraud, wilful misconduct, wilful breach
of duty, serious and wilful negligence or incompetence in the
performance of the Participant's duties; or
(b) is convicted of a criminal offence (other than a minor motor traffic
offence or other trivial offence which does not impact on the
Participant's good fame and character or ability to perform his/her
duties) or is guilty of any other wilful or recklessly indifferent
conduct which, in the reasonable opinion of the Board, may injure or
tend to injure the reputation and/or the business or operations of a
Group Company,
the Board may declare that any or all of the Participant's Participant
Shares have been forfeited for a total of $1.00, and the Participant Shares
are forfeited accordingly.
4.10A DISCRETION TO DETERMINE THAT PERFORMANCE SHARES WILL NOT BE FORFEITED
Notwithstanding any other paragraph in this Schedule 3, if a Participant
ceases employment with the Company for any reason, or gives notice of their
intention to cease employment with the Company, the Board may in its
absolute discretion (on any conditions which it thinks fit) decide that
some or all of the Participant's unvested Performance Shares will not be
forfeited at that time, but will be forfeited at the time and subject to
the conditions it may specify by notice to the Participant, which may
include one or more of the following:
(c) that the period to which any Minimum Restriction Conditions and / or
any Performance Condition relates is reduced to a period shorter than
that which would otherwise apply;
(d) that the Minimum Restriction Condition applicable to a Performance
Share be waived; and
(e) that a Performance Share which vests in accordance with the terms and
conditions specified in the notice may be exercised within the period
specified in paragraph 4.4 or any shorter period specified in the
notice.
4.11 WITHDRAWAL NOT PERMITTED ON BANKRUPTCY
It is a condition precedent to submitting a Notice of Withdrawal of Shares
that if the Participant is an individual, the Participant is not bankrupt
and has not committed an act of bankruptcy or, if the Participant is
deceased, the Participant's estate is not bankrupt or if the Participant is
not an individual,
the Participant is not insolvent or subject to a resolution or order for
winding up.
4.12 SHARES/CUFS HELD IN RESERVE ACCOUNT
Where Shares or CUFS are forfeited under this paragraph 4, the Trustee may
either hold those Shares or CUFS (as applicable) in the Reserve Account or
sell those Shares or CUFS and hold those proceeds to the Reserve Account.
4.13 RELEASE OF PARTICIPANT SHARES AFTER 10 YEARS
Subject to this paragraph 4, if a Participant has not submitted a Notice of
Withdrawal of Shares to the Trustee within 30 days after the 10th
anniversary of the Acquisition Date of the Participant's Shares, then the
Board may, in its absolute discretion, direct the Trustee (which direction
the Trustee must comply with) to either:
(a) transfer to the Participant some or all of the Participant's Shares
held by the Trustee on behalf of the Participant (and, in this case,
the Participant irrevocably directs the Trustee to do all that is
necessary on behalf of the Participant to effect and complete the
transfer); or
(b) sell, on behalf of the Participant, some or all of the Participant's
Shares held by the Trustee on behalf of the Participant.
4.14 APPLICATION OF SALE PROCEEDS
If the Participant's Shares are sold by the Trustee on behalf of the
Participant, the Trustee must apply the proceeds of sale:
(a) first, in payment of any stamp duty, tax, brokerage or like costs and
expenses of the sale incurred by the Trustee on behalf of the
Participant; and
(b) second, the balance (if any) in payment to the Participant.
4.15 SALE OF PARTICIPANT SHARES
Any direction by a Participant to the Trustee under this paragraph 4 to
sell some or all of the Participant's Shares on the Participant's behalf is
a direction to sell those Participant's Shares at any time within 60 days
of the date of the direction by instructing a Market Participant to sell
the Participant's Shares at the best price reasonably obtainable for that
Participant's Shares in the market at the time of sale.
4.16 PROCEEDS OF SALE DEDUCTION
If the Trustee, in its discretion, considers that it will be required to
deduct or remit any amount in respect of taxation because the Participant's
Shares are to be transferred to the Participant or sold under this
paragraph 4, then, despite anything else in these rules, the Trustee may
retain and sell (on behalf of the Participant) a sufficient number of the
Participant's Shares to obtain cash to meet that obligation.
4.17 TRUSTEE MAY ACCUMULATE TRANSFERS
Where the Trustee is required to sell or transfer the Participant's Shares
under paragraph 4, the Trustee may accumulate the Participant Shares to be
sold or transferred and deal with them all at or about the same time,
provided that all outstanding sales and transfers are effected within 60
days after the date of the Participant's direction or the Trustee's
decision to sell or transfer.
4.18 TRUSTEE MAY DEFER SALE OR TRANSFER
The Trustee may defer the sale or transfer of any Participant's Shares
under paragraph 4 until the Board has determined to its satisfaction that
the Participant's Shares have not been forfeited under this paragraph 4 in
the particular circumstances of the Participant.
A Participant may agree with the Trustee to repay any debts owing or moneys
payable to a Group Company on their behalf from the proceeds of sale of the
Participant's Shares.
4.19 UNCLAIMED MONEYS
If the Trustee cannot, within 12 months from the date of sale of a
Participant's Shares under this paragraph 4, locate the Participant (at
their last residential address, as notified by the Participant) to pay any
balance of the proceeds of sale of the Participant's Shares in accordance
with this paragraph 4, then the Trustee must transfer the proceeds to the
Reserve Account.
4.20 RECTIFICATION
If:
(a) a Participant's Shares have been sold by the Trustee but it is
subsequently proven to the satisfaction of the Trustee that those
Participant's Shares were not required to be sold; or
(b) a Court or other competent authority orders the reinstatement of a
person as a Participant of the Performance Share Plan,
the Trustee may take the steps it considers necessary or desirable to put
the affected Participant(s) or former Participant(s) in the same position
(so far as is practicable) as they would have been had the Participant's
Shares not been sold.
Without limiting the above, the Trustee may in those circumstances:
(a) allocate Shares or CUFS forfeited by other Participants under this
paragraph 4 to the affected Participant's or former Participant's
Share Account;
(b) apply cash from the Reserve Account to acquire Shares or CUFS for the
affected Participant or former Participant; and/or
(c) treat the Acquisition Date of the Shares or CUFS (as applicable)
credited to the affected Participant or former Participant's Share
Account as being a date other than the actual date of acquisition.
5 TRUSTEE MAY REJECT NOTICE OF WITHDRAWAL
If the Board determines that a Participant's employment may be terminated
by their Employer (or that the Participant may terminate their employment
with a Group Company) in circumstances which may involve an act of fraud,
defalcation or gross misconduct in relation to the Group then, despite
anything else in these rules, the Board may direct the Trustee to reject
any Notice of Withdrawal of Shares in relation to the Participant's Shares
(which direction the Trustee must comply with).
6 RESERVE ACCOUNT
6.1 CREDIT OF RESERVE ACCOUNT
Any amounts, Performance Shares or other property standing from time to
time to the credit of the Reserve Account must be held by the Trustee for
the general purposes of the Performance Share Plan until applied in
accordance with paragraph 6.2 or 6.3.
6.2 APPLICATION OF RESERVE ACCOUNT AMOUNTS
The Trustee may apply any amount standing to the credit of the Reserve
Account:
(a) in meeting Plan Expenses; or
(b) for any other purposes relevant to the Performance Share Plan,
however no amount may be paid to, or applied for the benefit of, the
Company or any other member of the Group.
6.3 DISPOSAL OF PERFORMANCE SHARES HELD IN RESERVE ACCOUNT
Any Performance Shares standing to the credit of the Reserve Account, and
any other property standing to the credit of the Reserve Account, may be
sold or disposed of by the Trustee, in which case the sale proceeds are to
be applied in accordance with paragraph 6.2.
7 DISTRIBUTION OF DIVIDENDS, RIGHTS ISSUES, BONUS SHARES AND INTEREST
7.1 DISTRIBUTIONS AND OTHER BENEFITS
A Participant is entitled to receive any dividend or other distribution or
entitlement in respect of Performance Shares which, at the record date for
determining entitlements to those dividends or other distribution or
entitlement, stand to the credit of the Share Account of that Participant.
This applies even if the Performance Shares remain subject to Minimum
Restriction Condition or Performance Condition, but does not apply if the
Shares are forfeited under paragraph 4. Except as expressly provided for in
these rules, the Trustee may determine the most practical means for the
dividend, distribution or entitlement to be realised.
7.2 RESERVE ACCOUNT SHARES
Any dividends received by the Trustee in respect of Performance Shares
which, at the record date for determining entitlements to those dividends,
stand to the credit of the Reserve Account are to be credited to the
Reserve Account and applied in accordance with paragraph 6.
7.3 PARTICIPATION IN SCHEMES
(a) A Participant is entitled to participate in any scheme for the
reinvestment of dividends paid or payable from time to time by the
Company, or any bonus election scheme which permits dividends paid or
payable from time to time by the Company to be foregone and bonus
shares to be issued in lieu, in respect of a Participant's Shares and:
(b) may do so by giving written notice to the Trustee;
(c) the Participant's participation must be in respect of all the
Participant's Shares, and not some only;
(d) a Participant's participation in a dividend reinvestment scheme or
bonus share scheme under this paragraph continues until the
Participant notifies the Trustee in writing that they no longer wish
to participate in the scheme; and
(e) where a Participant is participating in a dividend reinvestment scheme
or a bonus share scheme under this paragraph, any Shares or CUFS which
are received by the Trustee in respect of Performance Shares that, at
the record date for determining entitlements to those shares stand to
the credit of the Share Account of that Participant, must be credited
to the Share Account of that Participant and must not be subject to
any Minimum Restriction Condition or Performance Condition.
Participants are not entitled to fractions of Shares, which are to be
credited to the Reserve Account and applied in accordance with
paragraph 6.
7.4 RIGHTS ISSUES
(a) If the Company announces a Rights issue:
(b) the Trustee must notify each Participant of the Rights issue, and
offer each Participant an opportunity to require the Trustee to
exercise those Rights in respect of Participant Shares;
(c) if the Participant wants the Trustee to exercise the relevant Rights,
they must give a written direction to the Trustee to this effect and
pay the issue price to the Trustee by the time and in the manner
specified in the notice referred to in paragraph 7.4(a);
(d) any Shares or CUFS allotted to the Trustee as a result of the Trustee
exercising Rights in accordance with this paragraph 7.4 must be
credited to the Share Account of the relevant Participant and are not
subject to any Minimum Restriction Condition or Performance Condition;
and
(e) if the Rights are renouncable and a Participant declines, or does not
respond to, the offer made by the Trustee under paragraph 7.4(a), the
Trustee must use its best endeavours to sell those Rights. The
Participant is entitled to receive the net proceeds of that sale, and
the Trustee must pay the net proceeds of that sale to the Participant.
7.5 BONUS SHARES
(a) Any bonus shares which are received by the Trustee in respect of
Performance Shares that, at the record date for determining
entitlements to those bonus shares, stand to the credit of:
(b) any Share Account of a Participant - are to be credited to that Share
Account, and are deemed for the purposes of these rules to have been
credited to that Share Account at the same time as the Performance
Shares in respect of which the bonus shares are issued were credited
to the Share Account. Bonus shares are to be subject to the same
Minimum Restriction Conditions and Performance Conditions as the
Shares or CUFS (as applicable) in respect of which they are issued.
Participants are not entitled to fractions of bonus shares, which are
to be credited to the Reserve Account and applied in accordance with
paragraph 6; or
(c) the Reserve Account - are to be credited to the Reserve Account and
applied in accordance with paragraph 6.
7.6 INTEREST
Any interest or other earnings derived by the Trustee and not otherwise
provided for under this paragraph 7, whether attributable to amounts
standing to the credit of the Share Accounts of Participants or to amounts
standing to the credit of the Reserve Account, are to be credited to the
Reserve Account and applied in accordance with paragraph 6.
8 VOTING RIGHTS
8.1 NOTICES TO BE FORWARDED TO PARTICIPANT
A copy of all notices of General Meetings of members of the Company
received by the Trustee must be forwarded to each Participant unless the
Participant has notified the Trustee that they do not wish to receive the
notices.
8.2 PARTICIPANT MAY DIRECT VOTING
Subject to the terms of issue of the relevant Performance Shares, a
Participant may direct the exercise of any voting rights attaching to the
Participant's Shares by directing the Trustee how the relevant voting
rights are to be exercised at any meeting of members of the Company.
8.3 TRUSTEE TO FOLLOW DIRECTIONS
The Trustee must exercise the voting rights attached to Participant's
Shares in accordance with the instructions of a Participant given under
paragraph 8.2
and received by the Trustee not less than 72 hours before the relevant
meeting.
8.4 NO VOTING IF NO DIRECTION
The Trustee must not exercise any voting rights attaching to any
Participant Shares in respect of which it has not received instructions in
accordance with this paragraph 8.
9 TAKEOVER OFFERS, REORGANISATIONS AND COMPULSORY ACQUISITION
9.1 TRUSTEE NOT TO ACCEPT
The Trustee must not accept any offer made for any Performance Shares, and
any purported acceptance by a Participant in respect of their Participant
Shares is of no force or effect, unless:
(a) the Board makes a decision in accordance with paragraph 9.2 and a
Participant issues a notice in accordance with paragraph 9.4; or
(b) the Board gives a direction in accordance with paragraph 9.5.
9.2 TAKEOVERS AND REORGANISATION: BOARD DETERMINATION
If:
(a) a takeover bid is made for all or part of the Shares, the Board may
declare that a Participant is permitted, if they wish, to direct the
Trustee to accept the offer on the Participant's behalf in respect of
all or part of the Participant's Shares on the terms, and in the
circumstances, determined by the Board in its absolute discretion;
(b) a proposed Reorganisation is announced, the Board may:
(i) on the terms and in the circumstances determined by the Board in
its absolute discretion, declare that a Participant is permitted,
if they wish, to direct the Trustee to sell, on the Participant's
behalf, the Participant's Shares by instructing a Market
Participant; or
(ii) make any other determination in relation to Participant's
participation in the proposed Reorganisation as it sees fit
including, but not limited to, the matters referred to in
paragraph 9.3.
9.3 EXAMPLES OF BOARD DETERMINATION
Without limiting the scope of the Board's determination under paragraph
9.2, the Board may determine:
(a) the form of consideration to be received by the Trustee on behalf of
the Participant for the Participant's Shares (for example, cash,
shares, other securities or a combination of them);
(b) the extent to which non-cash consideration received by the Trustee on
behalf of the Participant for the Participant's Shares will be
converted into cash in accordance with paragraphs 9.9 to 9.11;
(c) that any shares or other securities received by the Trustee on behalf
of the Participant for the Participant's Shares are not to be
transferred to the Participant, but rather:
(i) be treated in accordance with these rules as if they were
Participant Shares; and
(ii) be deemed, for the purposes of these rules, to have been credited
to the Share Account of that Participant at date(s) as near as
possible to the date(s) when the Participant's Shares, in respect
of which the Participant directed the Trustee to accept the
offer, were credited to that account.
9.4 PARTICIPANT'S DIRECTION IN WRITING
A Participant, who wishes to direct the Trustee to accept an offer in
respect of all or part of the Participant's Shares in accordance with the
Board determination (if any), must do so by giving notice in writing to the
Trustee on or before the day specified in the Board determination.
9.5 RESERVE ACCOUNT SHARES
Where an offer is made for all or part of the Shares, the Board may direct
the Trustee to accept that offer in respect of all or part of the
Performance Shares standing to the credit of the Reserve Account, in which
case the money or other consideration received by the Trustee for accepting
the offer is to be credited to the Reserve Account and applied in
accordance with paragraph 6.
9.6 COMPULSORY ACQUISITION: CONTINUED APPLICATION OF THESE RULES
The Board may determine that any shares or other securities received by the
Trustee in consideration for the compulsory acquisition of any
Participant's Shares are not to be transferred to the Participant, but
rather are to be dealt with in accordance with the Board's determination.
Without limiting the scope of the Board's determination, the Board may
determine that those shares or other securities are to be:
(a) treated in accordance with these rules as if they were Performance
Shares; and
(b) deemed, for the purposes of these rules, to have been credited to the
Share Account of the Participant at date(s) as near as possible to the
date(s) when the Performance Shares, which were compulsorily acquired
in consideration for those shares or securities, were credited to that
account.
9.7 COMPULSORY ACQUISITION: RESERVE ACCOUNT SHARES
If any Performance Shares standing to the credit of the Reserve Account are
subject to compulsory acquisition under any law, the money or other
consideration received by the Trustee in respect of that compulsory
acquisition is to be credited to the Reserve Account and applied in
accordance with paragraph 6.
9.8 PROCEDURE TO CONVERT NON-CASH CONSIDERATION
If the Trustee is required, by a Board determination, to convert non-cash
consideration received on the sale of Participant Shares to cash the
Trustee must apply the cash received on conversion:
(a) first, in payment of any stamp duty, tax (including brokerage or like
costs and expenses) of the sale incurred by the Trustee on behalf of
the Participant; and
(b) second, the balance (if any) in payment to the Participant.
A Participant may agree with the Trustee to repay any debts owing or moneys
payable to a Group Company, on their behalf from the proceeds of sale of
the non-cash consideration.
9.9 CONVERSION OF NON-CASH CONSIDERATION: AUTHORISATION
Each Participant irrevocably authorises the Trustee to take any action
reasonably necessary to convert non-cash consideration received by the
Trustee on behalf of the Participant for the Participant's Shares, (other
than non-cash consideration which is not to be transferred in accordance
with paragraph 9.3 and paragraph 9.6) to pay the cash received in
accordance with paragraph 9.8.
9.10 CONVERSION OF NON-CASH CONSIDERATION
Any direction to convert non-cash consideration to cash is a direction to
sell that non-cash consideration at any time within 60 days of the date of
the direction at the best price reasonably obtainable for that non-cash
consideration in the market at the time of sale.
9.11 TRUSTEE MAY ACCUMULATE TRANSFERS
If the Trustee is required to sell non-cash consideration under paragraph
9.8, the Trustee may accumulate the non-cash consideration to be sold and
deal with them all at or about the same time, provided that all outstanding
sales and transfers are effected within 60 days of the direction.
9.12 UNCLAIMED MONEYS
If the Trustee cannot, within 12 months from the date of sale of non-cash
consideration under this paragraph 9, locate the Participant (at their last
residential address, as notified by the Participant) to pay any balance of
the proceeds of sale of the Participant's non-cash consideration in
accordance with this paragraph 9, then the Trustee must transfer the
proceeds to the Reserve Account.
10 CHANGE OF TRUSTEE AND TRUSTEE POWERS
10.1 BOARD MAY APPOINT NEW TRUSTEE
The Board may by resolution appoint a new Trustee from time to time.
10.2 CEASING TO BE TRUSTEE
The Trustee ceases to be the Trustee:
(a) when the Board serves notice in writing to that effect on the Trustee;
(b) when the Trustee serves notice in writing to that effect on the Board;
or
(c) when a provisional liquidator, receiver, administrator or receiver and
manager of the Trustee is appointed to the Trustee or the Trustee goes
into liquidation or an order or resolution is made for its winding up.
10.3 TRANSFER OF ASSETS
On a change of Trustee, the retiring Trustee must promptly and
expeditiously execute all transfers, deeds or other documents necessary to
transfer all money and property held under the terms of these rules into
the name of the new Trustee.
10.4 POWERS OF TRUSTEE
Subject to rule 4.1 and without prejudice to the powers vested in the
Trustee by these rules or otherwise, the Trustee has the following powers:
(a) to enter into and execute all contracts, deeds and documents and do
all acts, matters or things which it may deem expedient for the
purpose of giving effect to and carrying out the trusts, authorities,
powers and discretions conferred on the Trustee by these rules;
(b) to subscribe for, purchase or otherwise acquire and to sell or
otherwise dispose of property, rights or privileges which the Trustee
is authorised by these rules to acquire or dispose of on terms and
conditions it thinks fit;
(c) to appoint and at its discretion remove or suspend custodian trustees,
managers, agents and servants, determine the powers and duties to be
delegated to them and pay such remuneration to them as it may think
fit;
(d) to institute, conduct, defend, compound, settle or abandon any legal
proceedings concerning the affairs of the Performance Share Plan, and
also to compound and allow time for payment or satisfaction of any
debts due and any claim or demands by or against the Trustee
concerning the Performance Share Plan;
(e) to open bank accounts and to retain on current or deposit account at
any bank, those moneys as it considers proper and to make
regulations for the operation of those bank accounts, including the
signing and endorsing of cheques;
(f) to subscribe for, purchase or otherwise acquire and hold Performance
Shares and transfer them to persons in accordance with these rules;
(g) to receive distributions paid on Performance Shares and to apply those
amounts in accordance with these rules;
(h) to sell Performance Shares and apply the proceeds of sale in
accordance with these rules;
(i) to sell or take up any Rights and apply the proceeds of sale or
resulting Shares or other securities in accordance with these rules;
(j) to take and act on the advice or opinion of any legal practitioner
(whether in relation to the interpretation of these rules or any other
document or statute or as to the administration of the Trust) or any
other professional person, and whether obtained by the Trustee or not,
without being liable in respect of any act done by it in accordance
with that advice or opinion;
(k) to make rules or to adopt procedures not inconsistent with the
provisions of these rules in relation to the calculation and rounding
off of contributions, dividends, interest or other amounts, the
determination of periods of time, and any other matters as are
appropriate for the convenient administration of the Performance Share
Plan;
(l) to pay from the funds of the Trust any Plan Expenses;
(m) generally to do all acts and things as the Trustee may consider
necessary or expedient for the administration, maintenance and
preservation of the Performance Share Plan and in performance of its
obligations under these rules.
10.5 TRUSTEE MAY APPOINT DELEGATE
The Trustee may from time to time delegate to any director of the Trustee,
or other person appointed by the Trustee, the right and power on behalf of
the Trustee to sign, draw, endorse, or otherwise execute, as the case may
be, all or any:
(a) cheques, drafts and other negotiable or transferable instruments;
(b) receipts for money paid to the Trustee; and
(c) other documents connected with the due administration of the
Performance Share Plan or with these rules.
10.6 TRANSFERS AND PAYMENTS
No transfer, distribution or payment under these rules is to be made until
the Trustee has ascertained that it may be made in accordance with the
provisions of these rules.
10.7 GOOD FAITH
Any transfer, distribution or payment made in good faith to a person
believed by the Trustee to be entitled to receive it is, for the purposes
of these rules, deemed to be a transfer, distribution or payment (as the
case may be) to the person entitled to receive it and is a valid discharge
to the Trustee in respect of the transfer, distribution or payment.
10.8 TRUSTEE'S DISCRETIONS: GENERALLY
The Trustee, or any director or other officer of the Trustee, may exercise
or concur in exercising all powers and discretions conferred on the
Trustee, director or officer (as the case may be), by law even though it or
they may have a direct or other personal interest in the mode or result of
exercising that power or discretion. The director or officer may
nevertheless abstain from acting, except as a formal party, in any matter
in which they may be personally interested.
10.9 TRUSTEE'S DISCRETION WHERE PARTICIPANT IMPAIRED
If a Participant, or person who is entitled to any Performance Shares or
other property or to payment of any amount under these rules, is under any
legal, physical, mental or other disability of any kind and is, in the
opinion of the Trustee, unable to properly and competently manage their
financial affairs, the Trustee may transfer all or part of the relevant
Performance Shares or other property, or make payment of all or part of the
relevant amount (as the case may be), to any other person as the Trustee,
in its sole discretion, sees fit, to be held for the benefit of the
Participant or person otherwise entitled. The Trustee is not liable for or
responsible for seeing to the subsequent application of the Performance
Shares or other property transferred or amounts paid, and the receipt of
the recipient, transferee or payee is a good discharge.
10.10 UNFETTERED POWERS AND DISCRETION
The Trustee in the exercise of the powers and discretions vested in it by
these rules has an absolute and uncontrolled discretion and may exercise or
enforce all or any of those powers and discretions at any time and from
time to time or may refrain from exercising all or any of them from time to
time or at all.
10.11 EXTENSION OF TIME
Without limiting paragraph 10.10, the Trustee has a discretion to extend
the period within which a Participant must give a notice to the Trustee or
exercise a right conferred on the Participant under these rules where, in
all the circumstances, the Trustee considers that it would unfairly
prejudice the Participant or their estate not to do so.
10.12 REMUNERATION OF TRUSTEE
The Trustee is not entitled to receive from the Performance Share Plan any
commission or other remuneration in respect of its office, but the Company
may if it thinks fit pay to the Trustee any remuneration it thinks fit from
its own resources.
10.13 TRUSTEE NOT TO USE TRUST PROPERTY AS SECURITY
The Trustee must not use any Participant Shares as security.
11 TRUSTEE'S WARRANTIES
11.1 TRUSTEE AUTHORISED
If the Trustee is not a Group Company, the Trustee represents and warrants
to the Company on the date of these rules and throughout the term of its
appointment as trustee of the Trust that:
(a) it is duly incorporated and validly exists under the law of its place
of incorporation;
(b) it has taken all necessary action to authorise the execution, delivery
and performance of these rules in accordance with its terms;
(c) it has full power to enter into and perform its obligations under
these rules and can do so without the approval or consent of any other
person; and
(d) its obligations under these rules are valid and binding and are
enforceable against it in accordance with its terms.
11.2 COMPLIANCE WITH LAW
If the Trustee is not a Group Company, the Trustee represents and warrants
to the Company on the date of these rules and throughout the term of its
appointment as trustee of the Trust that the execution, delivery and
performance by it of its obligations under these rules and any other
document to be executed by it pursuant to or in connection with these rules
complies with:
(a) each law, and each regulation, authorisation, ruling, judgment, order or
decree of any government agency which is binding on it;
(b) its constitution; and
(c) any other document which is binding on it, and will not result in a breach
of, or give any third party a right to terminate or modify, any agreement,
licence or other instrument or result in a breach of any order, judgment or
decree of any court, government agency or regulatory body to which it is a
party or by which it is bound.
11.3 SOLVENCY OF TRUSTEE
If the Trustee is not a Group Company, the Trustee represents and warrants
to the Company on the date of these rules and throughout the term of its
appointment as trustee of the Trust that it is not insolvent, in
liquidation or administration and no proceedings have been brought or
threatened for the purpose of winding it up or placing it in
administration. No petition or other process for winding-up has been
presented or threatened against it and there are no circumstances
justifying such a petition or other process. No writ of execution has
issued against it and is outstanding. No receiver, receiver and
manager or other controller, administrator or similar official has been
appointed over any part of its undertaking or assets and there are no
circumstances (including execution of the trust deed constituting the
Trust) justifying an appointment.
12 LICENCES OBTAINED
If the Trustee is not a Group Company, the Trustee represents and warrants
to the Company on the date of these rules and throughout the term of its
appointment as trustee of the Trust that:
(a) it has all statutory licences, consents and authorisations required to
execute, deliver and perform its obligations under these rules and any
other documents to be executed by it pursuant to or in connection with
these rules ("LICENCE");
(b) all conditions which apply to any such Licence have been (or will be)
complied with in all material respects;
(c) no Licences have been breached by it or are likely to be suspended,
cancelled, refused, materially altered, not renewed, or revoked; and
(d) in particular, it warrants that it will comply with its obligations
under Part 7 of the Corporations Act with respect to its role as
trustee of the Trust and its obligations under these rules.
13 TRUST PROPERTY AND INVESTMENTS
13.1 TRUST PROPERTY
The Trust's property consists of:
(a) the settlement sum referred to in Trust Deed constituting the Trust;
(b) contributions made to the Trust under these rules;
(c) Performance Shares; and
(d) any other moneys or property received by the Trustee for the purposes
of the Performance Share Plan, and the investments and property from
time to time representing the above, together with all associated
income, additions or accretions.
13.2 INVESTMENTS
Any moneys that may be held by the Trustee, but which are not currently
required for the purposes of the Performance Share Plan, may in the
absolute discretion of the Trustee be placed on deposit with any bank,
company or financial institution or invested in any one or more of the
modes of investment authorised by law for the investment of trust funds or
in any manner in which the Trustee could invest, if it were personally
entitled to those moneys.
13.3 CHARACTERISATION OF INCOME AND CAPITAL
Before the end of each Year of Income, the Trustee may decide whether:
(a) any amount received or held by the Trustee under the Performance Share
Plan is to be treated as being on income or capital account; and
(b) any actual or deemed capital gain arising in that Year of Income under
the Tax Act is to be included as income of the Trust estate
constituted by the Trust Deed.
Unless the Trustee has made a decision under this paragraph 13.3, an item
is taken into account in calculating the income of the Trust estate
constituted by the Trust Deed if it would be taken into account in
calculating the Net Income of the Trust.
Where the income of the Trust estate constituted by the Trust Deed
determined under this paragraph 13 includes the amount of a deemed capital
gain arising from the appointment or distribution of part of the income or
property of the Trust during a Year of Income in favour of a Participant,
or a fund, the Trustee may decide that such amount has been distributed to
that Participant or fund by virtue of that appointment or distribution.
The Trustee may decide that any part of a payment or distribution made
under the Performance Share Plan is to be from a particular class or source
of income or property of the Performance Share Plan.
14 RECORDS AND ACCOUNTS
14.1 SEPARATE PARTICIPANT ACCOUNTS
The Trustee must cause a Share Account to be opened and maintained in
respect of each Participant in which the following are to be recorded:
(a) Performance Shares allocated to the Participant;
(b) Performance Shares transferred from the Share Account to the
Participant;
(c) Performance Shares or amounts transferred from the Share Account to
the Reserve Account; and
(d) any other credit or debit made to the Share Account for the purposes
of, or in accordance with, these rules.
14.2 NOTIFICATION TO PARTICIPANT
At least once each year, at a time the Trustee considers appropriate, the
Trustee must notify each Participant of the number of their Participant
Shares and any other information the Trustee considers appropriate.
14.3 RESERVE ACCOUNT TO BE OPENED AND MAINTAINED
The Trustee must cause a Reserve Account to be opened and maintained, in
which the following are to be recorded:
(a) Performance Shares or amounts transferred between any Share Account
and the Reserve Account;
(b) any dividends, Rights, bonus shares, interest or other earnings or
other amounts credited to the Reserve Account under paragraph 6;
(c) any application of any amount standing to the credit of the Reserve
Account in accordance with these rules;
(d) any sale or disposal of Performance Shares or other property standing
to the credit of the Reserve Account in accordance with these rules;
and
(e) any other credit or debit made to the Reserve Account for the purposes
of these rules.
14.4 OTHER ACCOUNTS
The Trustee must keep, or cause to be kept, any other accounts and records
necessary for the operation of the Performance Share Plan and the Trust.
14.5 INSPECTION OF ACCOUNTS
The books of account of the Trust must be maintained at the registered
office of the Company and be available for inspection by Participants
during normal business hours in Australia, or other times agreed between
the Trustee and relevant Participants, free of charge, on prior written
request.
14.6 AUDIT OF ACCOUNTS
The Trustee must appoint an auditor of the Trust. The Trustee must cause
the books of account to be audited annually by the Trust's auditor and must
ensure that the auditor has access to all papers, accounts and documents
concerned with or relating to the Trust.
15 OBLIGATIONS AND INDEMNITY OF THE TRUSTEE
15.1 TRUSTEE INDEMNITY
Without derogating from the right of indemnity given by law to trustees,
the Company agrees to indemnify and continue to indemnify the Trustee:
(a) in respect of all liabilities, costs and expenses incurred by the
Trustee in the execution or purported execution of the Trust or any of
the powers, authorities or discretions vested in the Trustee; and
(b) from and against all actions, proceedings, costs, claims and demands
in respect of any matter or thing done or omitted to be done,
(c) other than a liability or claim arising out of the Trustee's
negligence, dishonesty, fraud or the Trustee wilfully or knowingly
being a party to (if internal) a breach of trust.
15.2 NO TRUSTEE LIABILITY
The Trustee is not under any liability whatsoever to any Group Company
except in the event of:
(a) the Trustee's negligence, dishonesty, fraud or wilful breach of trust;
or
(b) the negligence, dishonesty, fraud or wilful breach of trust of any of
the Trustee's employees or agents.
15.3 PARTICIPANT NOT LIABLE
Nothing in paragraph 15 enables the Trustee to recover any liabilities,
costs and expenses from any Participant.
15.4 NO RIGHT AGAINST PARTICIPANT
Except as expressly provided in these rules, the Trustee has no right of
indemnity against a Participant personally.
16 TERMINATION
16.1 TERMINATION OF THE TRUST
The Trust terminates and is to be wound up (as provided below) on the
occurrence of any of the following events:
(a) if the Plan is terminated under rule 6;
(b) if the Board determines that the Trust is to be wound up; or
(c) should the Trust be at any time subject to the rule of law against
perpetuity, on the later of:
(i) the date on which the Trust becomes subject to the rule of law
against perpetuity; and
(ii) the 80th anniversary of the date of these rules.
16.2 TERMINATION: SALE AND APPLICATION OF PROCEEDS
On the Plan and the Trust terminating in accordance with paragraph 16.1(a),
the Trustee must either, in its absolute discretion, transfer the
Participant Shares to the Participant of the Performance Share Plan or sell
the Participant Shares. If the Participant Shares are sold, the Trust must
apply the proceeds received in the manner set out in paragraph 4.14.
16.3 APPLICATION OF RESIDUAL AMOUNT
If, after selling Performance Shares and applying the proceeds in
accordance with paragraph 16.2, any Performance Shares or other assets of
the Performance Share Plan remain, they and the proceeds of their sale must
be firstly applied in meeting any Plan Expenses and the costs and
liabilities of
winding up the Performance Share Plan, and then be applied by the Trustee
to or for the benefit of:
(a) any other employee share plan or employee incentive plan or scheme for
the benefit of employees of the Group; or
(b) any superannuation or similar fund for the benefit of employees of the
Group,
as the Trustee in its absolute discretion determines and, if applied to two
or more plans or schemes, in the proportions as the Trustee in its absolute
discretion determines.
16.4 COMPANY'S OBLIGATION FOR ANY SHORTFALL
To the extent that the Performance Shares or other assets or the proceeds
of their sale are not sufficient to meet all Plan Expenses and the costs
and liabilities of winding up the Performance Share Plan, they are to be
met by the Company.
Schedule 4 - Award
1 INVITATION TO APPLY FOR AN AWARD
An Invitation to an Executive to apply for an Award may be made on such
terms and conditions as the Board decides from time to time, including as
to:
(a) the Prescribed Qualification Date or how it is calculated;
(b) the Determination Date;
(c) the number of Shares or CUFS on which the Payout will be calculated;
(d) any Payout Vesting Conditions;
(e) any Payout Qualification Conditions;
(f) any Supplementary Conditions; and
(g) the Payout Date.
2 GRANT OF AWARDS
2.1 COMPANY TO GRANT AWARDS
On receipt of an application for Awards, the Company at the discretion of
the Board may grant Awards to the Executive specified in the Invitation,
subject to the Terms and Conditions of Award.
2.2 NOTIFICATION TO PARTICIPANT
Following the grant of an Award a Participant under paragraph 2.1, the
Company will notify the Participant in writing:
(a) the Prescribed Qualification Date or how it is calculated;
(b) the Determination Date;
(c) the number of Shares or CUFS on which the Payout will be calculated;
(d) the Payout Date; and
(e) other terms and conditions (if any) as determined by the Board.
2.3 RESTRICTIONS ON DEALING WITH AWARDS
A Participant may not sell, assign, transfer or otherwise deal with, or
grant a Security Interest over, an Award granted to the Participant. The
Award lapses immediately on purported sale, assignment, transfer, dealing
or grant of Security Interest, unless the Board in its absolute discretion
approves the dealing or the transfer or transmission is effected by force
of law on death or legal incapacity to the Participant's legal personal
representative.
3 PAYMENT OF PAYOUTS
3.1 PAYOUT VESTING CONDITIONS AND PAYOUT QUALIFICATION CONDITIONS
Subject to paragraph 4, if a Participant's Award is subject to Payout
Vesting Conditions and/or Payout Qualification Conditions, the Participant
will not qualify for payment of the Payout unless all Payout Vesting
Conditions and Payout Qualification Conditions are satisfied (and in any
situation referred to in paragraph 3.3(b)(i), is satisfied at the time of
death or other cessation of employment), and then only to the extent
permitted by the Payout Qualification Condition.
3.2 TIMING OF PAYMENT
The Company will pay the Payout to the Participant on or before the Payout
Date.
3.3 QUALIFICATION DATE
A Participant will qualify for a Payout only on:
(a) the Prescribed Qualification Date for the Payout; or
(b) any earlier date on which the Participant qualifies for the Payout:
(i) under this paragraph 3 dealing with the Participant's death or
otherwise ceasing to be employed by a Group Company, and with
situations where the employer ceases to be a Group Company or the
business in which the Participant is employed is transferred; or
(ii) under paragraph 4 dealing with takeover bids, change of control,
court orders, Reorganisations and winding up.
3.4 AWARD WILL LAPSE EARLIER ON DEATH OR CESSATION OF EMPLOYMENT
A Participant's Award lapses on the latest of:
(a) the expiry of 24 months after the Participant's death, if death occurs
before the Award lapses under paragraph (b) or (c);
(b) the expiry of 24 months after the Participant ceases to be employed by
a Group Company by reason of Retirement or permanent disability; and
(c) the expiry of 3 months after the Participant ceases to be employed by
a Group Company for any other reason,
provided that if the Board issues a notice under paragraph 3.5 or 3.6
advising the Participant that a Vested Award has lapsed, the Award is
deemed to have lapsed on the date of death or cessation of employment (as
the case may be) and the Company has no obligation to make a Payout in
respect of the Vested Award.
3.5 QUALIFICATION FOR A PAYOUT ON PARTICIPANT'S DEATH
If a Participant dies before qualifying for a Payout, at a time when the
individual:
(a) is still an employee of a Group Company; or
(b) having ceased to be employed by a Group Company, falls within the
terms of paragraph 3.6,
then (subject to the other provisions of this paragraph 3), the Participant
will:
(c) qualify to receive a Payout in respect of a Vested Award on the date
of death except a Vested Award is deemed to have lapsed on the date of
death where the Board reasonably determines and provides notice to the
Participant in writing that the Vested Award has lapsed and the
Company has no obligation to make a Payout in respect of the Vested
Award; or
(d) if permitted by the Board in writing, qualify to receive a Payout in
respect of an Award that is not a Vested Award on the date of death.
3.6 QUALIFICATION FOR A PAYOUT ON CEASING TO BE EMPLOYED BY A GROUP COMPANY
If, before qualifying for a Payout, a Participant ceases to be employed by
a Group Company (other than by reason of his or her death), then (subject
to the other provisions of this paragraph 3):
(a) if the employment ceases by reason of Retirement, Redundancy,
Separation or otherwise for termination by the relevant Group Company
other than in circumstances set out in paragraph 3.9 the Participant
will:
(i) qualify to receive a Payout in respect of a Vested Award on the
date of cessation of employment, except a Vested Award is deemed
to have lapsed on the date of cessation of employment where the
Board reasonably determines and provides notice to the
Participant in writing that the Vested Award has lapsed and the
Company has no obligation to make a Payout in respect of the
Vested Award; or
(ii) if permitted by the Board in writing, qualify to receive a Payout
in respect of an Award that is not a Vested Award on the date of
cessation of employment; or
(b) if the employment ceases for a reason other than Retirement,
Redundancy, Separation or otherwise for termination by the relevant
Group Company other than in circumstances set out in paragraph 3.9 the
Participant is qualified to receive a Payout on the date of cessation,
only if permitted by the Board in writing.
3.7 INDIVIDUAL NOT TREATED AS CEASING TO BE AN EMPLOYEE
For the purposes of this paragraph 3, a Participant:
(a) is not treated as ceasing to be an employee of a Group Company unless
and until the individual is no longer an employee of any Group
Company, whether or not in the same capacity as at the time the Award
was granted; and
(b) subject to paragraph 3.8, is not treated as ceasing to be an employee
of a Group Company if the individual is no longer an employee of any
Group Company because:
(i) the individual's employer ceases to be a Group Company, whether
or not, after the cessation, the individual remains an employee
of that employer; or
(ii) the individual is an employee of a business that is transferred
to a person that is not a Group Company.
3.8 AWARD LAPSES IF EMPLOYER CEASES TO BE A GROUP COMPANY OR ON CHANGE IN
OWNERSHIP OF BUSINESS
If a Participant is no longer an employee of a Group Company because of
circumstances set out in paragraph 3.7(b)(i) or (ii), then the Awards lapse
upon this occurring except where otherwise determined by the Board in
writing, in which case the Participant's Awards lapse on the latest of:
(a) the expiration of 24 months after the date of the cessation or
transfer (as the case may be); and
(b) if the Participant dies before the Award lapses under paragraph (a),
the expiration of 24 months after the individual's death.
3.9 AWARD MAY LAPSE IN THE CASE OF FRAUD OR DISHONESTY
If, in the opinion of the Board, a Participant:
(a) has committed (or it is evident the Participant intends to commit),
any act (whether by omission or commission) which amounts or would
amount to any of dishonesty, fraud, wilful misconduct, wilful breach
of duty, serious and wilful negligence or incompetence in the
performance of the Participant's duties; or
(b) is convicted of a criminal offence (other than a minor motor traffic
offence or other trivial offence which does not impact on the
Participant's good fame and character or ability to perform his/her
duties) or is guilty of any other wilful or recklessly indifferent
conduct which, in the reasonable opinion of the Board, may injure or
tend to injure the reputation and/or the business or operations of a
Group Company,
the Board may declare that any Award has lapsed, and the Award lapses
accordingly.
3.10 NOT QUALIFY FOR A PAYOUT ON BANKRUPTCY
It is a condition precedent to qualification for a Payout that if the
Participant is an individual, the Participant is not bankrupt and has not
committed an act of bankruptcy or, if the Participant is deceased, the
Participant's estate is not bankrupt or if the Participant is not an
individual, the Participant is not insolvent or subject to a resolution or
order for winding up.
3.11 CEASING TO BE AN EXECUTIVE
Where a Participant qualifies for a Payout under this paragraph 3 (other
than paragraph 3.3(a)) and paragraph 4, the Board may in its discretion
adjust the amount of the Payout pro rata based on the proportion which the
period from the date the Board accepts the Participant's application to
participate in the Plan ("ACCEPTANCE DATE") to the date the Participant
ceases to be an Executive bears to the period from the Acceptance Date to
the Prescribed Qualification Date.
3.12 NOTICE
The Company will notify Participants of any adjustment that will be made to
a Payout within a reasonable time of the event which gave rise to the
adjustment under paragraph 3.11 occurring.
3.13 DISCRETION TO DETERMINE THAT AWARD WILL NOT LAPSE
Notwithstanding any other paragraph in this Schedule 4, if a Participant
ceases employment with the Company for any reason, or gives notice of their
intention to cease employment with the Company before the Payout of an
Award, the Board may in its absolute discretion (on any conditions which it
thinks fit) decide that some or all of the Award does not lapse, but lapses
at the time and subject to the conditions it may specify by notice to the
Participant, which may include one or more of the following:
(a) that the period to which any Payout Vesting Condition and / or any
Payout Qualification Condition relates is reduced to a period shorter
than that which would otherwise apply;
(b) that the Payout Vesting Criteria applicable to an Award be waived; and
(c) that an Award which vests in accordance with the terms and conditions
specified in the notice may be exercised within the period specified
in paragraph 3.4 or any shorter period specified in the notice.
4 TAKEOVER, REORGANISATION AND WINDING-UP
4.1 TAKEOVER BID
If a takeover bid is made to acquire any Shares, at any time any offers
under a takeover bid remain open for acceptance, the Board may give written
notice of the bid to each Participant, stating that the Participant has
qualified to receive a Payout on such date specified in the notice.
4.2 APPLICATION TO THE COURT
If the Board determines that an application is to be made to the court
under for a meeting to be held as described in paragraph 4.4, the Board may
give written notice of the application to each Participant, stating that
the Participant has qualified to receive a Payout on such date specified in
the notice.
4.3 CHANGE OF CONTROL
If, pursuant to a takeover bid or otherwise, any person together with their
associates acquire Shares, which when aggregated with Shares already
acquired by such person and their associates, comprise more than 30% of the
issued Shares of the Company, the Board may give written notice to each
Participant stating that the Participant has qualified to receive a Payout
on such date specified in the notice.
4.4 MEETING TO CONSIDER A REORGANISATION
If, pursuant to the Articles of Association, Applicable Regulations or
otherwise, the Board determines to convene a General Meeting or other
meeting of holders of the Company's securities or a meeting of the
Company's creditors, or a court orders a meeting, to be held in relation to
a proposed Reorganisation, the Board may give written notice to each
Participant stating that the Participant has qualified to receive a Payout
on such date specified in the notice.
4.5 COMPULSORY ACQUISITION, REORGANISATION OR WINDING UP
If:
(a) a person becomes bound or entitled to compulsorily acquire Shares in
the Company under the Articles of Association or Applicable
Regulations;
(b) a Reorganisation is sanctioned by one or more of the following under
the Articles of Association, Applicable Regulations or otherwise:
(i) a court;
(ii) a General Meeting or other meeting of holders of the Company's
securities; or
(c) a meeting of the Company's creditors; or
(d) the Company passes a resolution for voluntary winding up or an order
is made for the compulsory winding up of the Company,
then the Board may give written notice to each Participant stating that the
Participant has qualified to receive a Payout on such date specified in the
notice.
5 ADJUSTMENTS
The Company may, as reasonably determined by the Board, adjust the Payout
if any of the following occurs which affects the number of Shares on issue:
(a) a bonus issue of Shares (including an issue by way of a dividend); or
(b) a capital reconstruction of the issued capital of the Company
including by a consolidation or sub-division.
6 TAXES
Payouts shall be reduced by any taxes that are required to be withheld from
such payments.
7 NO INTEREST IN UNITS OR SHARES
For the avoidance of doubt, nothing in this schedule confers or is intended
to confer on a Participant any interest in a unit, share or other security
in the Group or any right to acquire a share or other security in the Group
or any other body corporate or entity or any right or benefit generally
accorded to holders of Shares or CUFS.
Schedule 5 - Provisions applicable only to U.S. Executives
1 GENERAL
(a) Notwithstanding any provision of the Plan (including any Schedules
thereto) or any Invitation to the contrary, the terms and conditions
specified in this Schedule 5 shall apply to all Invitations for
Options, Performance Rights, Performance Shares and/or Awards granted
to each Participant who is a U.S. Executive at the time of the grant.
(b) The provisions of this Schedule 5 incorporate the provisions of
Schedules 1, 2, 3 and 4 except that, in the event of any conflict
between a term and/or condition of the Plan (or any Invitation) and
this Schedule 5, the provisions of this Schedule 5 shall prevail to
the extent of the conflict.
2 OPTIONS
2.1 ADDITIONAL TERMS AND CONDITIONS
The Board is authorized to grant Options to any U.S. Executive in
accordance with Schedule 1 and including the following terms and
conditions:
(a) EXERCISE PRICE. The Exercise Price payable under an Option shall be
determined by the Board, provided that such Exercise Price shall not
be less than 100% of the Fair Market Value of a Share on the Grant
Date of the Option. If the U.S. Executive owns or is deemed to own (by
reason of the attribution rules applicable under Section 424(d) of the
U.S. Revenue Code) more than 10% of the combined voting power of all
classes of stock of the Company (or any parent corporation or
subsidiary corporation of the Company, as those terms are defined in
Sections 424(e) and (f) of the U.S. Revenue Code, respectively) and an
Incentive Stock Option is granted to such U.S. Executive, the Exercise
Price of such Incentive Stock Option (to the extent required by the
U.S. Revenue Code at the time of grant) shall be no less than 110% of
the Fair Market Value a Share on the Grant Date.
(b) INCENTIVE STOCK OPTIONS. The terms of any Incentive Stock Option
granted under the Plan shall comply in all respects with the
provisions of Section 422 of the U.S. Revenue Code. Notwithstanding
anything in the Plan to the contrary, no term of the Plan relating to
Incentive Stock Options shall be interpreted, amended or altered, nor
shall any discretion or authority granted under the Plan be exercised,
so as to disqualify either the Plan or any Incentive Stock Option
under Section 422 of the U.S. Revenue Code, unless the Executive has
first requested, or consents to, the change that will result in such
disqualification. Thus, if and to the extent required to comply with
Section 422 of the U.S. Revenue Code, Options granted as Incentive
Stock Options shall be subject to the following special terms and
conditions:
(i) Incentive Stock Options shall only be granted to a U.S. Executive
of the Company who, on the Grant Date, is an employee of a Group
Company.
(ii) The Invitation shall specify that no disposition of the Shares
acquired upon exercise of the Incentive Stock Option by the U.S.
Executive shall be allowed within one year from the Prescribed
Exercise Date and two years from the Grant Date.
(iii) The Incentive Stock Option shall not be granted within 10 years
from the Effective Date of the Plan, or the date the Plan is
approved by the shareholders, whichever is earlier.
(iv) The Incentive Stock Option shall not be exercisable more than ten
years after the date such Incentive Stock Option is granted;
provided, however, that if an U.S. Executive owns or is deemed to
own (by reason of the attribution rules of Section 424(d) of the
U.S. Revenue Code) more than 10% of the combined voting power of
all classes of stock of the Company (or any parent corporation or
subsidiary corporation of the Company, as those terms are defined
in Sections 424(e) and (f) of the U.S. Revenue Code,
respectively) and the Incentive Stock Option is granted to such
U.S. Executive, the term of the Incentive Stock Option shall be
(to the extent required by the U.S. Revenue Code at the time of
the grant) for no more than five years from the date of grant.
(v) The aggregate Fair Market Value (determined as of the Grant Date
of the Incentive Stock Option) of the Shares with respect to
which Incentive Stock Options granted under the Plan and all
other option plans of the Company (and any parent corporation or
subsidiary corporation of the Company, as those terms are defined
in Sections 424(e) and (f) of the U.S. Revenue Code,
respectively) that become exercisable for the first time by the
U.S. Executive during any calendar year shall not (to the extent
required by the U.S. Revenue Code at the time of the grant)
exceed US$100,000.
(vi) An Incentive Stock Option shall not be transferable by such U.S.
Executive otherwise than by will or the laws of descent and
distribution, and is exercisable, during the U.S. Executive's
lifetime, only by such U.S. Executive.
(vii) An Incentive Stock Option shall not be exercisable more than
three months after the U.S. Executive ceases to be employed by a
Group Company. However, if such cessation is on account of the
U.S. Executive's disability (within the
meaning of Section 22 of the U.S. Revenue Code), the three months
shall be extended to 12 months.
2.2 ADJUSTMENTS
Notwithstanding anything to the contrary, the Board shall not make any
adjustments to Options under Section 7.2 of Schedule 2 that would cause any
adverse tax treatment to any Participant under Section 409A of the U.S.
Revenue Code or that would be in contravention of any U.S. securities laws
or any rules and regulations under the New York Stock Exchange or any
exchange on which the Shares of the Company are listed.
3 PERFORMANCE RIGHTS
3.1 ADDITIONAL TERMS AND CONDITIONS
The Board is authorized to grant Performance Rights to any U.S. Executive
(which shall be treated as a grant of restricted stock to such U.S.
Executive and governed by Section 83 of the U.S. Revenue Code) in
accordance with Schedule 2 and including the following terms and
conditions:
(a) GRANT AND RESTRICTIONS. Performance Rights shall be subject to such
restrictions on transferability, risk of forfeiture and other
restrictions, if any, as the Board may impose, or as otherwise
provided in this Plan, covering a period of time specified by the
Board (the "Restriction Period"). The terms of any Invitation to apply
for Performance Rights granted under the Plan shall contain provisions
determined by the Board and not inconsistent with the Plan. The
restrictions may lapse separately or in combination at such times,
under such circumstances (including based on achievement of
performance goals and/or future service requirements), in such
installments or otherwise, as the Board may determine at the date of
grant or thereafter. Except to the extent restricted under the terms
of the Plan and any Invitation relating to Performance Rights, an U.S.
Executive granted Performance Rights shall have all of the rights of a
shareholder, including the right to vote the Shares underlying the
Performance Rights and the right to receive dividends thereon (subject
to any mandatory reinvestment or other requirement imposed by the
Board). During the Restriction Period, the Performance Rights may not
be sold, transferred, pledged, hypothecated, margined or otherwise
encumbered by the U.S. Executive.
(b) CERTIFICATES FOR STOCK. Performance Rights granted under the Plan may
be evidenced in such manner as the Board shall determine. If
certificates representing Performance Rights are registered in the
name of the U.S. Executive, the Board may require that such
certificates bear an appropriate legend referring to the terms,
conditions and restrictions applicable to such Performance Rights,
that the Company retain physical possession of the certificates, and
that the U.S. Executive deliver a stock power to the Company, endorsed
in blank, relating to the Performance Rights.
(c) DIVIDENDS AND SPLITS. As a condition to the Invitation to apply for
Performance Rights, the Board may require or permit an U.S. Executive
to elect that any cash dividends paid on a Share underlying such
Performance Rights be automatically reinvested in additional
Performance Rights or applied to the purchase of additional
Performance Rights under the Plan. Unless otherwise determined by the
Board, Shares distributed in connection with a stock split or stock
dividend, and other property distributed as a dividend, shall be
subject to restrictions and a risk of forfeiture to the same extent as
the Performance Rights with respect to which such Shares or other
property have been distributed.
4 PERFORMANCE SHARES
4.1 TERMS AND CONDITIONS
The Board is authorized to grant Performance Shares to any U.S. Executive.
Any Performance Shares granted to a U.S. Executive shall be governed by the
following provisions and those terms and conditions in Schedule 3 shall not
be applicable to such grant (and, for the avoidance of doubt, any
Performance Shares granted under this Schedule 5 shall not be held by the
Trustee under the Trust established in relation to the Performance Share
Plan):
(a) GRANTS AND RESTRICTIONS. The Board is authorized to grant Performance
Shares to any U.S. Executive payable in cash, Shares, or other
Performance Shares, on terms and conditions established by the Board,
if and to the extent that the Board shall, in its sole discretion,
determine that such Performance Shares shall be subject to those
provisions. The performance criteria to be achieved during any
Performance Period and the length of the Performance Period shall be
determined by the Board upon the grant of each Performance Share.
Except as may be provided in an Invitation for Performance Shares,
Performance Shares will be distributed only after the end of the
relevant Performance Period. The performance goals to be achieved for
each Performance Period shall be conclusively determined by the Board
and may be based upon the criteria set forth in paragraph 6.1(f) of
this Schedule, or in the case of Performance Shares that the Board
determines shall not be subject to paragraph 6.1(f) of this Schedule,
any other criteria that the Board, in its sole discretion, shall
determine should be used for that purpose. The number of Performance
Shares to be distributed shall be conclusively determined by the
Board. Performance Shares may be paid in Shares or in a lump sum or in
installments following the close of the Performance Period or, in
accordance with procedures established by the Board, on a deferred
basis.
(b) OTHER TERMS AND CONDITIONS. Unless otherwise determined by the Board
on the Grant Date and in the Invitation, all other terms and
conditions of Performance Shares granted to U.S. Executives shall be
governed under Schedule 2, provided that "Performance Share" shall
replace "Performance Right" in each such place that it appears in such
Schedule 2.
5 AWARDS
5.1 ADDITIONAL TERMS AND CONDITIONS
The Board is authorized to grant Awards to any U.S. Executive in accordance
with Schedule 4 and including the following terms and conditions:
(a) COMPLIANCE WITH SECTION 409A. Grants of Awards under the Plan are
intended to be exempt from the requirements of Section 409A by reason
of the benefits hereunder constituting short-term deferrals within the
meaning of applicable guidance issued under Section 409A, and to the
extent administratively practicable, the Plan shall be construed in a
manner consistent with the requirements for such exemption. If and to
the extent that the grant of Awards under the Plan are not deemed to
qualify for the short-term deferral exception, then the Plan and any
Invitations for Awards granted pursuant to the Plan shall be construed
in a manner consistent with the requirements of Section 409A, and the
Committee may amend the Plan and/or any such Invitations to the extent
necessary or appropriate to comply with those requirements, without
obtaining shareholder or Participant approval.
6 CERTAIN PROVISIONS APPLICABLE TO OPTIONS, PERFORMANCE RIGHTS, PERFORMANCE
SHARES AND AWARDS
Each Option, Performance Right, Performance Share and Award granted to a
U.S. Executive shall be subject to the following additional provisions:
(a) TERM. The term of each Option, Performance Right, Performance Share
and Award shall be for such period as may be determined by the Board;
provided that in no event shall the term exceed a period of ten years
(or in the case of an Incentive Stock Option such shorter term as may
be required under Section 422 of the U.S. Revenue Code).
(b) TIME AND METHOD OF EXERCISE. The Board shall determine the time or
times at which or the circumstances under which an Option, Performance
Right, or Performance Shares may be withdrawn and/or Award may be
exercised in whole or in part (including based on achievement of
performance goals and/or future service requirements), the time or
times at which such Option, Performance Right, Performance Share
and/or Award shall cease to be or become exercisable or withdrawn (as
the case may be) following a Participant ceasing to be employed by a
Group Company or upon other conditions, the methods by which the
exercise price may be paid or deemed to be paid (including in the
discretion of the Board a cashless exercise procedure), the form of
such payment, including, without limitation, cash, Shares (including
without limitation the withholding of Shares otherwise deliverable
pursuant to the Option, Performance Right, Performance Share and/or
Award), other Options, Performance Rights, Performance Shares and/or
Awards granted under other plans of the Company or a Group Company, or
other property (including
notes or other contractual obligations of Participants to make payment
on a deferred basis provided that such deferred payments are not in
violation of the Sarbanes-Oxley Act of 2002, or any rule or regulation
adopted thereunder or any other applicable law), and the methods by or
forms in which Shares will be delivered or deemed to be delivered to
Participants.
(c) FORM AND TIMING OF PAYMENT. Subject to the terms of the Plan and any
applicable Invitation, payments to be made by the Company upon the
exercise or settlement of an Option, Performance Right, Performance
Share and Award may be made in such forms as the Board shall
determine, including, without limitation, cash, Shares, other
Invitations or other property, and may be made in a single payment or
transfer, in installments, or on a deferred basis. Any installment or
deferral provided for in the preceding sentence shall, however, be
subject to the Company's compliance with the provisions of the
Sarbanes-Oxley Act of 2002, the rules and regulations adopted by the
Securities and Exchange Commission thereunder, and all applicable
rules of the New York Stock Exchange or any national securities
exchange on which the Company's securities are listed for trading and,
if not listed for trading on either the New York Stock Exchange or a
national securities exchange, then the rules of the Nasdaq Stock
Market. The settlement of any Option, Performance Right, Performance
Share and Award may be accelerated, and cash paid in lieu of Shares in
connection with such settlement, in the discretion of the Board or
upon occurrence of one or more specified events (in addition to a
Change in Control). Installment or deferred payments may be required
by the Board or permitted at the election of the Executive on terms
and conditions established by the Board. Payments may include, without
limitation, provisions for the payment or crediting of a reasonable
interest rate on installment or deferred payments or the grant or
crediting of Dividend Equivalents or other amounts in respect of
installment or deferred payments denominated in Shares.
(d) EXEMPTIONS FROM SECTION 16(B) LIABILITY. It is the intent of the
Company that the grant of any Options, Performance Rights, Performance
Shares and Awards to (and/or any other transactions pursuant to the
Plan with) an Executive who is subject to Section 16 of the U.S.
Exchange Act, shall be exempt from Section 16 pursuant to an
applicable exemption (except for transactions acknowledged in writing
to be non-exempt by such Executive). Accordingly, if any provision of
this Plan or any Invitation does not comply with the requirements of
Rule 16b-3 then applicable to any such transaction, such provision
shall be construed or deemed amended to the extent necessary to
conform to the applicable requirements of Rule 16b-3 so that such
Executive shall avoid liability under Section 16(b).
(e) U.S. REVENUE CODE SECTION 409A. If and to the extent that the Board
believes that the Plan and/or any Invitations for Options, Performance
Rights, Performance Shares and Awards may constitute a "nonqualified
deferred compensation plan" under Section 409A of the U.S. Revenue
Code, the terms and conditions set forth in the Award Agreement for
that Award shall be drafted in a manner that is
intended to comply with, and those provisions (and /or the provisions
of the Plan applicable thereto) shall be interpreted in a manner
consistent with, the applicable requirements of Section 409A of the
U.S. Revenue Code, and the Board, in its sole discretion and without
the consent of any U.S. Executive, may amend any Award Agreement (and
the provisions of the Plan applicable thereto) if and to the extent
that the Board determines necessary or appropriate to comply with the
applicable requirements of Section 409A of the U.S. Revenue Code.
(f) U.S. REVENUE CODE SECTION 162(M) PROVISIONS.
(i) Covered Employees. The Committee, in its discretion, may
determine at the time an Option, Performance Right, Performance
Share or Award is granted to an Executive who is, or is likely to
be, as of the end of the tax year in which the Company would
claim a tax deduction in connection with such Option, Performance
Right, Performance Share or Award, a "Covered Employee," that the
provisions of this Section 6.1(e) shall be applicable to such
Option, Performance Right, Performance Share or Award.
(ii) Performance Criteria. If an Option, Performance Right,
Performance Share or Award is subject to this Section 6.1(e),
then the lapsing of restrictions thereon and the distribution of
cash, Shares or other property pursuant thereto, as applicable,
shall be contingent upon achievement of one or more objective
performance goals. Performance goals shall be objective and shall
otherwise meet the requirements of Section 162(m) of the U.S.
Revenue Code and regulations thereunder including the requirement
that the level or levels of performance targeted by the Committee
result in the achievement of performance goals being
"substantially uncertain." One or more of the following business
criteria for the Company, on a consolidated basis, or for
business or geographical units of the Company (except with
respect to the total shareholder return and earnings per share
criteria), shall be used by the Committee in establishing
performance goals for such Options, Performance Rights,
Performance Shares and Awards: (1) earnings per share; (2)
revenues or margins; (3) cash flow; (4) operating margin; (5)
return on net assets, investment, capital, or equity; (6)
economic value added; (7) direct contribution; (8) net income;
pretax earnings; earnings before interest and taxes; earnings
before interest, taxes, depreciation and amortization; earnings
after interest expense and before extraordinary or special items;
operating income; income before interest income or expense,
unusual items and income taxes, local, state or federal and
excluding budgeted and actual bonuses which might be paid under
any ongoing bonus plans of the Company; (9) working capital; (10)
management of fixed costs or variable costs; (11) identification
or consummation of investment opportunities or completion of
specified projects in accordance with corporate business plans,
including strategic mergers, acquisitions or divestitures; (12)
total shareholder
return; (13) debt reduction; (14) market share; (15) entry into
new markets, either geographically or by business unit; (16)
customer retention and satisfaction; (17) strategic plan
development and implementation, including turnaround plans; (18)
and/or the Fair Market Value of a Share. Any of the above goals
may be determined on an absolute or relative basis or as compared
to the performance of a published or special index deemed
applicable by the Committee including, but not limited to, the
Standard & Poor's 500 Stock Index or a group of companies that
are comparable to the Company. The Committee shall exclude the
impact of an event or occurrence which the Committee determines
should appropriately be excluded, including without limitation
(i) restructurings, discontinued operations, extraordinary items,
and other unusual or non-recurring charges, (ii) an event either
not directly related to the operations of the Company or not
within the reasonable control of the Company's management, or
(iii) a change in accounting standards required by generally
accepted accounting principles.
(iii) Performance Period; Timing For Establishing Performance Goals.
Achievement of performance goals in respect of Performance Awards
shall be measured over a Performance Period no shorter than 12
months and no longer than five years, as specified by the
Committee. Performance goals shall be established not later than
90 days after the beginning of any Performance Period applicable
to such Performance Awards, or at such other date as may be
required or permitted for "performance-based compensation" under
U.S. Revenue Code Section 162(m).
(iv) Adjustments. The Committee may, in its discretion, reduce the
amount of a settlement otherwise to be made in connection with
Options, Performance Rights, Performance Shares or Awards subject
to this Section 8, but may not exercise discretion to increase
any such amount payable to a Covered Employee in respect of an
Option, Performance Right, Performance Share or Award subject to
this Section 6.1(e). The Committee shall specify the
circumstances in which such Awards shall be paid or forfeited in
the event of termination of the Executive's employment prior to
the end of a Performance Period or exercise or settlement of
Options, Performance Rights, Performance Shares or Awards.
(v) Committee Certification. No Executive shall receive any payment
under the Plan that is subject to this Section 6.1(e) unless the
Committee has certified, by resolution or other appropriate
action in writing, that the performance criteria and any other
material terms previously established by the Committee or set
forth in the Plan, have been satisfied to the extent necessary to
qualify as "performance based compensation" under U.S. Revenue
Code Section 162(m).