EXHIBIT 4.5
ALLIED DOMECQ PLC
RULES OF THE ALLIED DOMECQ PLC
EXECUTIVE SHARE OPTION SCHEME 1999
Directors Adoption: 25 October 1999
Last amended: [28] October 2002
Expiry Date: 25 October 2009
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RULES OF THE ALLIED DOMECQ PLC EXECUTIVE SHARE OPTION SCHEME 1999
1 Meanings Of Words Used
In these Rules:
"ADS" means an American depository share representing ordinary shares of
the Company;
"Business Day" means a day on which the London Stock Exchange or as the
context requires the NYSE is open for the transaction of business;
"Company" means Allied Domecq PLC;
"Control" has the meaning given to it by Section 840 of the Taxes Act;
"Date of Grant" means the date on which the Directors resolve to grant an
Option;
"Directors" means the board of directors of the Company or a duly
authorised committee of it;
"Eligible Employee" means any person who:
(i) either is an employee of a Participating Company, or is a director
of a Participating Company who devotes substantially the whole of
his working time to his duties and is required, under the terms of
his employment with a Participating Company, to devote not less than
25 hours a week excluding meal breaks to his duties; and
(ii) at the Date of Grant is not within 2 years of his normal retirement
date;
"the London Stock Exchange" means The London Stock Exchange plc;
"Member of the Group" means:
(i) the Company; and
(ii) its Subsidiaries from time to time; and
(iii) any other company which is associated with the Company and is
designated by the Directors as a Member of the Group;
"NYSE" means the New York Stock Exchange;
"Option" means a right to acquire Shares granted under the Scheme;
"Optionholder" means a person holding an Option or his personal
representatives;
"Option Period" means a period starting on the Date of Grant of an Option
and ending at the end of the day before the 10th anniversary of the Date of
Grant or such shorter period as may be specified on the Date of Grant;
"Option Price" means the amount payable for each Share on the exercise of
an Option calculated as described in Rule 3;
"Participating Companies" means the Company and any subsidiary, and any
other company which is designated by the Directors as a Participating
Company;
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"Performance Condition" means a condition or conditions imposed under Rule
2.3;
"Rules" means these rules as changed from time to time;
"Scheme" means this scheme known as "The Allied Domecq PLC Executive Share
Option Scheme 1999";
"Shares" means fully paid ordinary shares or securities representing
ordinary shares in the capital of the Company or, as the context may
require, ADSs;
"Subsidiary" means a company which is a subsidiary of the Company within
the meaning given to it by Section 736 of the Companies Act 1985;
"Taxes Act" means the Income and Corporation Taxes Act 1988.
2 Grant Of Options
2.1 Selection:
The Directors may grant to any Eligible Employee an Option to acquire such
number of Shares as they may determine.
2.2 Time when Options may be granted:
Options may only be granted within 42 days starting on any of the
following:
2.2.1 the day after the announcement of the Company's results to the
London Stock Exchange for any period;
2.2.2 any day on which the Directors resolve that exceptional
circumstances exist which justify the grant of Options;
2.2.3 any day on which changes to the legislation or regulations affecting
share option schemes approved by the Inland Revenue under the Taxes
Act (apart from savings related share option schemes) are announced,
effected or made;
2.2.4 the day on which any Shares are first admitted to the London Stock
Exchange Daily Official List.
The Directors may only grant Options between the adoption of the Scheme and
the 10th anniversary of that date and may not grant Options at any time
which would cause the Option Price to be calculated by reference to any
days on or before the announcement of results.
If the Directors cannot grant any Options due to restrictions imposed by
statute, order, regulation or government directive, or by any code adopted
by the Company based on the London Stock Exchange's model code for
securities transactions by directors of listed companies, the Directors may
grant Options within 42 days after the lifting of such restrictions.
2.3 Conditions on exercise:
When granting an Option, the Directors may make its exercise conditional on
the satisfaction of a Performance Condition, which must be objective, and
specified at the Date of Grant.
The Directors may waive or change the Performance Condition if events
happen which cause the Directors reasonably to consider that a changed
Performance Condition would
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be a fairer measure of performance, and would be no more difficult to
satisfy, or that the Performance Condition should be waived.
2.4 Option Certificates:
Each Optionholder will receive an option certificate, executed as a deed,
or such other document as the Directors may consider appropriate, on or as
soon as practicable after the Date of Grant.
2.5 No Payment:
Optionholders are not required to pay for the grant of any Option.
2.6 Disclaimer of Option:
Any Optionholder may disclaim all or part of his Option by notice in
writing to the Secretary of the Company, within 60 days after the Date of
Grant. If this happens the Option will be deemed never to have been granted
under the Scheme. No consideration is payable for the disclaimer.
2.7 Disposal restrictions:
Except for the transmission of an Option on the death of an Optionholder to
his personal representatives, neither an Option nor any rights in respect
of it may be transferred, assigned or otherwise disposed of by an
Optionholder to any other person.
2.8 Administrative errors:
If the Directors try to grant an Option which is inconsistent with Rules 4
(individual limits) or 5 (scheme limits), the Option will be limited and
will take effect from the Date of Grant on a basis consistent with Rules 4
and 5.
2.9 Options over ADSs
The Directors may determine, in their absolute discretion, to grant Options
in the form of an Option to acquire ADSs and references in these Rules to
Share, Option, Option Price etc. shall be construed accordingly. Upon the
exercise of any Option to acquire ADSs the Company will:
2.9.1 deliver or cause to be delivered to the ADS depository the requisite
number of Shares representing the relevant ADSs and shall instruct
the depository to issue the corresponding American depository
receipts evidencing such ADSs to the exercising Optionholder; or
2.9.2 make other arrangements for the Optionholder to acquire ADSs.
3 Option Price
3.1 Setting the Price:
The Directors will set the Option Price on the Date of Grant. The Option
Price, which may be expressed in sterling or in US dollars, will be:
3.1.1 not less than the Market Value of a Share on the Date of Grant; and
3.1.2 if the Shares are to be subscribed, not less than the nominal value
of a Share.
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3.2 Market value:
"Market Value" on any particular day means:
3.2.1 where Shares of the same class are not admitted to the Official List
of the London Stock Exchange, the market value of a share calculated
as described in Part VIII of the Taxation of Chargeable Gains Act
1992;
3.2.2 where Shares of the same class are so listed the middle market
quotation (as derived from the Daily Official List of the London
Stock Exchange) on the immediately preceding Business Day, or on the
three immediately preceding Business Days, as the Directors may
determine; and
3.2.3 where the Option Price to acquire ADSs is expressed in US dollars,
(i) the average of the reported highest and lowest trading prices of
an ADS as derived from the NYSE on the immediately preceding
Business Day, (ii) if ADSs are not then listed on a national stock
exchange but are then traded on an over-the-counter market, the
average of the closing bid and asked prices for the ADSs in such
market, as determined by the Directors, or (iii) if ADSs are not
then listed on a national stock exchange or traded on an
over-the-counter market, such value as the Directors in their
discretion may in good faith determine represents the market value
of an ADS; provided that, where the ADSs are so listed or traded,
the Directors may make such discretionary determinations where the
ADSs have not been traded for 10 trading days.
4 Individual Limits
The Directors shall consider any limits on the grant of Options to Eligible
Employees having regard to the performance of the Eligible Employee and
prevailing market practice.
5 Scheme Limits
5.1 10 per cent. in 10 years limit:
The number of Shares which may be allocated under the Scheme on any day
will not exceed 10 per cent. of the ordinary share capital of the Company
in issue immediately before that day, when added to the total number of
Shares which have been allocated in the previous 10 years under the Scheme
and any other employee share scheme operated by the Company.
5.2 5 per cent. in 10 years limit:
The number of Shares which may be allocated under the Scheme on any day
will not exceed 5 per cent. of the ordinary share capital of the Company in
issue immediately before that day when added to the total number of Shares
which have been allocated in the previous 10 years under the Scheme and any
other executive share scheme adopted by the Company.
5.3 Rationing Limit (3% in 3 years)
Unless the limits set out in Rule 5.4 are and have always been followed,
the number of Shares which may be allocated under the Scheme on any day
will not exceed 3 per cent. of the ordinary share capital of the Company in
issue immediately before that day when added to the total number of Shares
which have been allocated in the previous 3 years under the Scheme and any
other employees' share scheme adopted by the Company.
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5.4 Alternative Rationing Limit (5% in 5 years and 3% in 3 years for executive
schemes):
The limits referred to in Rule 5.3 are as follows:
5.4.1 The number of Shares which may be allocated under the Scheme on any
day will not exceed 5 per cent. of the ordinary share capital of the
Company in issue immediately before that day, when added to the
total number of Shares which have been allocated in the previous 5
years under the Scheme and any other employees' share scheme adopted
by the Company;
5.4.2 The number of Shares which may be allocated under the Scheme on any
day will not exceed 3 per cent. of the ordinary share capital of the
Company in issue immediately before that day, when added to the
total number of Shares allocated during the previous 3 years under
the Scheme and any other discretionary share scheme adopted by the
Company.
5.5 Exclusions:
Where the right to acquire Shares is released or lapses without being
exercised, the Shares concerned will be ignored when calculating the limits
in this Rule.
5.6 Meaning of Allocate:
"Allocate" means, in relation to any share option scheme, placing unissued
Shares under option and, in relation to other types of employee share
scheme, the issue and allotment of Shares.
6 Variations In Share Capital
6.1 Adjustment of Options:
If there is a variation in the equity share capital of the Company,
including a capitalisation or rights issue, sub-division, consolidation or
reduction of share capital, or if there is a demerger or other transaction
which may affect Options (directly or indirectly) the Directors may adjust
the following in any way (including retrospective adjustments):
6.1.1 the number or nominal amount of Shares comprised in each Option; and
6.1.2 the Option Price.
6.2 Nominal Value:
6.2.1 The Option Price of an Option to acquire Shares other than by
subscription may be adjusted to a price less than nominal value.
6.2.2 The Option Price of an Option to subscribe for Shares may only be
adjusted to a price less than nominal value, if the Directors
resolve to capitalise the reserves of the Company in an amount equal
to the difference between the adjusted Option Price payable for the
Shares to be issued on exercise, and the nominal value of such
Shares on the date of allotment.
7 Exercise And Lapse - General Rules
7.1 Exercise:
Except where exercise is allowed as described in Rule 8, an Option can only
be exercised:
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7.1.1 on or after the third anniversary of its Date of Grant or such other
date as may be specified on the Date of Grant;
7.1.2 if the Performance Condition is satisfied or waived; and
7.1.3 so long as the Optionholder is a director or employee of a Member of
the Group.
7.2 Lapse:
An Option will lapse on the earliest of:
7.2.1 the date the Optionholder ceases to be a director or employee of a
Member of the Group, unless any of the provisions in Rule 8 or 9
apply;
7.2.2 any date specified in the Performance Condition; or
7.2.3 if Rule 9 applies, on the expiry of the relevant period under Rule
9.3; or
7.2.4 the expiry of the Option Period.
7.3 Termination of employment:
For the purposes of Rule 7.2.1 above:
7.3.1 a woman who leaves employment due to pregnancy will be regarded as
having left employment on the date on which she indicates that she
does not intend to return to work. If there is no such indication
she will be regarded as having left employment on the last day on
which she is entitled to return to work under the Employment Rights
Act 1996 or, if later, any other date specified in her terms of
employment;
7.3.2 an Optionholder will not be treated as ceasing to be a director or
employee of a Member of the Group if on that date he is employed by
another Member of the Group.
8 Exercise And Lapse - Exceptions to the General Rules
8.1 Cessation of Employment:
8.1.1 If an Optionholder ceases to be a director or an employee of any
Member of the Group for any of the reasons set out below, he may
exercise his Options within 42 months after the Date of Grant, or if
later, within 6 months of the date of cessation, irrespective of the
satisfaction of any Performance Condition. The reasons are:
(i) ill-health, injury, disability, retirement (whether at normal
retirement age or earlier) or redundancy (within the meaning of
the Employment Rights Act 1996);
(ii) the Optionholder's employing company ceasing to be under the
Control of the Company; or
(iii) a transfer of the undertaking or the part of the undertaking in
which the Optionholder works to a person who is neither under
the Control of the Company nor a Member of the Group.
8.1.2 If an Optionholder ceases to be a director or employee of any Member
of the Group for reasons involving misconduct or poor performance
all his Options will
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lapse on such cessation. The decision of the Directors on this
matter will be conclusive.
8.1.3 To the extent that any Option exercisable under this Rule 8.1 is not
exercised within the period specified, it will lapse at the end of
the period.
8.2 Death:
If an Optionholder dies, his Options may be exercised by his personal
representatives within one year of his death. To the extent that any Option
exercisable under this Rule 8.2 is not so exercised, it will lapse at the
end of the one year period.
8.3 Takeovers:
If a person (or a group of persons acting in concert) obtains Control of
the Company as a result of making an offer to acquire shares which is
either unconditional or is made on a condition such that if it is satisfied
the person making the offer will have Control of the Company, Options may
be exercised, irrespective of the satisfaction of any Performance
Condition, within the 6 month period after the person making the offer has
obtained Control of the Company and any condition subject to which the
offer is made has been satisfied.
The Options will lapse at the end of the 6 month period, unless the
Directors give notice to the Optionholders before the end of the 6 month
period that the Options will not lapse.
If someone becomes bound or entitled to acquire Shares under Sections 428
to 430F of the Companies Act 1985, Options may be exercised, irrespective
of the satisfaction of any Performance Condition, at any time when that
person remains so bound or entitled. Options not exercised within that
period will lapse at the end of the relevant period referred to in Rule
9.3, unless the Directors give notice to the Optionholders before the
expiry of the relevant period that the Options will not lapse.
8.4 Company Reconstructions:
If under Section 425 of the Companies Act 1985 a court sanctions a
compromise or arrangement proposed for the purposes of or in connection
with a scheme for the reconstruction of the Company or its amalgamation
with any other company or companies, any Option may be exercised within six
months of the Court sanctioning the compromise or arrangement, irrespective
of the satisfaction of any Performance Condition.
8.5 Demergers and other significant distributions:
If the Directors become aware that the Company is or is expected to be
affected by any demerger, dividend in specie, super dividend or other
transaction which, in the opinion of the Directors, would affect the
current or future value of any Option, the Directors may, acting fairly,
reasonably and objectively, in their discretion, allow some or all Options
to be exercised. The Directors will specify the period of exercise of such
Options and whether the Options will lapse at the end of the period. In
exercising their discretion, the Directors may take into account
considerations relating to the Company and other Members of the Group, and
other employees and Optionholders.
8.6 Winding-Up:
8.6.1 If notice is duly given to Members of a resolution for the voluntary
winding-up of the Company, Options may be exercised irrespective of
the satisfaction of any Performance Condition, subject to the passing
of the resolution, at any time until the start of the winding-up
within the meaning of the Insolvency Act 1986. All
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Options will lapse on a winding-up of the Company unless exercised
before the winding-up starts.
8.6.2 If the Company is wound-up by the court, Options may be exercised,
irrespective of the satisfaction of any Performance Condition,
within 2 months after the date of the winding-up order. However, the
liquidator or the court (if appropriate) must authorise the issue of
Shares after such exercise, and the Optionholder must apply for this
authority and pay the application costs. Any Options not exercised
during the 2 month period will lapse at the end of the period.
8.7 Administration:
If an administration order is made in relation to the Company,
Optionholders may exercise their Options, irrespective of the satisfaction
of any Performance Condition, within 6 weeks after the date of the
administration order. However, the administrator or the court must
authorise the issue of Shares after such exercise.
8.8 Voluntary Arrangement:
If a voluntary arrangement is proposed in relation to the Company under
Part I of the Insolvency Act 1986, Optionholders may exercise their
Options, irrespective of the satisfaction of any Performance Condition,
within 14 days after the date of sending of any notices of meeting called
under Section 3 of the Insolvency Act 1986 in relation to such proposal.
8.9 Loss of ownership:
Where the Optionholder is deprived of the legal or beneficial ownership of
the Option by operation of law, or does anything or omits to do anything
which causes him to be so deprived or becomes bankrupt, all his Options
will lapse.
8.10 Priority:
If there is any conflict between any of the provisions of Rules 7 and 8,
the provision which results in the shortest exercise period or the earliest
lapse of the Option, or both, will prevail.
9 Exchange Of Options
9.1 Application:
This Rule applies if a company (the "Acquiring Company"):
9.1.1 obtains Control of the Company as a result of making a general offer
to acquire:
(i) the whole of the issued ordinary share capital of the Company
(other than that which is already owned by it and its subsidiary
or holding company) made on a condition such that, if satisfied,
the Acquiring Company will have Control of the Company; or
(ii) all the Shares (or those Shares not already owned by the
Acquiring Company or its subsidiary or holding company); or
9.1.2 obtains Control of the Company under a compromise or arrangement
sanctioned by the court under Section 425 of the Companies Act 1985;
or
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9.1.3 becomes bound or entitled to acquire Shares under Sections 428 to
430F of the Companies Act 1985.
9.2 Exchange:
If any of the events described in Rule 9.1 happens, the Acquiring Company
may, during the relevant period referred to in Rule 9.3, offer to grant an
Optionholder a new option in consideration of the release of his Option.
The new option must be equivalent to the released option.
9.3 Period for Substitution:
The period referred to in Rule 9.2 is:
9.3.1 in a case falling within Rule 9.1.1, 6 months starting with the time
when the Acquiring Company obtains Control of the Company and any
condition subject to which the offer is made is satisfied or waived;
9.3.2 in a case falling within Rule 9.1.2, 6 months starting with the time
when the court sanctions the compromise or arrangement; and
9.3.3 in a case falling within Rule 9.1.3, the period during which the
Acquiring Company remains so bound or entitled.
If more than one period is relevant, the period ending on the earliest date
applies.
9.4 Consequences of Exchange:
Where an Optionholder is granted a new option for release of his old Option
as described in this Rule 9, then:
9.4.1 the new option will be treated as having been acquired at the same
time as the old Option and be exercisable in the same manner and at
the same time as the old Option;
9.4.2 the new option will be subject to the provisions of the Scheme as it
had effect in relation to the old Option immediately before the
release but Rule 12.2 will not apply. In addition, other changes may
be made;
9.4.3 any Performance Condition will not apply, unless the terms of the
Performance Condition say otherwise; and
9.4.4 with effect from the release and grant:
(i) Rules 1, 3 and 6 to 11 (inclusive) will be construed, in relation
to the new option as if references to Shares were references to
shares for which the new option is granted; and
(ii) Rules 6, 8.3 to 8.10 and 9 to 11 (inclusive) will be construed,
in relation to the new option as if references to the Company
were references to the Acquiring Company.
10 Exercise Of Options
10.1 Manner of Exercise:
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Options must be exercised by notice in writing delivered to the
Company, in such form as the Company may from time to time prescribe.
The Optionholder must also provide payment of the Option Price for the
number of Shares being acquired.
10.2 Option Exercise Date:
10.2.1 Subject to Rule 10.2.2 the Option Exercise Date will be the later
of:-
(i) the date of receipt by the Company of the notice referred to in
Rule 10.1; and
(ii) the date on which the Directors decide that the Performance
Condition has been satisfied, or decide to waive the Performance
Condition.
10.2.2 If any statute, regulation or code adopted by the Company (based on
the London Stock Exchange's Model Code for security transactions by
directors of listed companies), prohibits the exercise of Options,
or the Company Secretary reasonably believes it so prohibits, the
date of exercise will be either the date described in Rule 10.2.1,
or, if later, the date when the Optionholder is permitted or the
Company Secretary believes the Optionholder is permitted to exercise
an Option. However, this Rule does not extend any period in which an
Option is exercisable.
10.3 Part Exercise:
An Option may be exercised in respect of all the Shares under the Option or
some only of the Shares. However, Options may be exercised only in
multiples of 500 Shares, or as the case may be, 125 ADSs, except where an
Option is exercised over the maximum number of Shares permissible at the
time.
10.4 Alternative Exercise:
The Directors may in their discretion determine that an Optionholder who
exercises his Option shall not receive Shares, and shall not pay the Option
Price, but shall instead receive either a cash amount equal to the amount
by which the Market Value of the Shares in respect of which the Option is
exercised exceeds the Option Price payable in respect of those Shares, or
Shares to the value of that cash amount, subject in both cases to rule
11.9.
If an Optionholder so requests, the Directors may determine to satisfy the
exercise of any Option with the appropriate number of ADSs. Any payment of
taxes in respect of satisfying an Option in this way will be met by the
Optionholder.
10.5 Issue or Transfer:
Subject to Rule 10.7 (consents):
10.5.1 Shares to be issued following the exercise of an Option will be
issued within 30 days of the Option Exercise Date.
10.5.2 The Directors will procure the transfer of Shares to be transferred
following the exercise of an Option within 30 days of the Option
Exercise Date.
10.6 Rights:
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10.6.1 Shares issued on the exercise of an Option will rank equally in all
respects with the Shares in issue on the date of allotment. They
will not rank for any rights attaching to Shares by reference to a
record date preceding the date of allotment.
10.6.2 Where Shares are to be transferred on the exercise of an Option,
Optionholders will be entitled to all rights attaching to the Shares
by reference to a record date on or after the transfer date. They
will not be entitled to rights before that date.
10.7 Consents:
All allotments, issues and transfers of Shares will be subject to any
necessary consents under any relevant enactments or regulations for the
time being in force in the United Kingdom or elsewhere. The Optionholder
will be responsible for complying with any requirements to be fulfilled in
order to obtain or avoid the necessity for any such consent.
10.8 Articles of Association:
Any Shares acquired on the exercise of Options will be subject to the
Articles of Association of the Company from time to time in force. (Any
ADSs acquired upon the exercise of any Option shall, in addition, be
subject to the terms of the deposit agreement between the Company and the
depository).
10.9 Listing:
If and so long as the Shares are listed on the Official List of the London
Stock Exchange, the Company will apply for listing of any Shares issued
under the Scheme as soon as practicable after their allotment.
11 General
11.1 Notices:
The provisions of the Company's Articles of Association for the time being
on the service of notices on members will apply as far as possible (but
altered if necessary) to any notice or other communications to be given
under the Scheme to an Optionholder.
11.2 Documents sent to Shareholders:
The Company may send to Optionholders copies of any documents or notices
normally sent to the holders of its Shares (including such notices or
documents required to be sent to Optionholders resident in the United
States in accordance with the rules and regulations under the US Securities
Exchange Act 1934 as amended).
11.3 Availability of Shares:
The Company will keep available for allotment sufficient unissued Shares
for all Options under which Shares may be subscribed or will procure that
sufficient Shares are available for transfer for all Options under which
Shares may be acquired.
11.4 Directors' decisions final and binding:
The decision of the Directors on the interpretation of the Rules or in any
dispute relating to an Option or matter relating to the Scheme will be
final and conclusive.
11.5 Costs:
The Company will pay the costs of introducing and administering the Scheme.
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11.6 Regulations:
The Directors have the power from time to time to make or vary regulations
for the administration and operation of the Scheme but these must be
consistent with the Rules.
11.7 Operation of the Scheme
11.7.1 Whether or not the Scheme is operated is at the discretion of the
Directors. Nothing in these Scheme rules or the operation of the
Scheme will form part of the contract of employment or employment
relationship of an Optionholder, Eligible Employee or any other
person (together, "Employees"). The rights and obligations of an
Employee are separate from, and are not affected by, the Scheme.
11.7.2 No Employee is entitled to participate in, or be considered for
participation in, the Scheme at all or at a particular level and
participation in one operation of the Scheme does not imply
participation, or consideration for participation, in the next or
any subsequent operation. Operation of the Scheme or participation
in it shall not create any right to, or expectation of, continued
employment.
11.7.3 An Employee has no rights in respect of the operation of the Scheme
or the exercise of any discretion or the taking of any decision
which relates to, or affects, the Scheme. Any, and all, discretions
and decisions whatsoever in respect of, or which affect, the Scheme
may be exercised or taken in a manner which is detrimental to the
Employee, even if such exercise or decision could be regarded as
being capricious or unreasonable or in breach of any implied term
between the Employee and his employer, including the implied duty of
trust and confidence. Any such implied term is expressly excluded
and overridden by this Rule 11.7.
11.7.4 No Employee will have any right to compensation or damages or any
other sum or benefit whatsoever in respect of the Scheme, including:
(i) in respect of eligibility to participate, or ceasing to be
eligible to participate, or ceasing to participate in the
Scheme;
(ii) any exercise of a discretion or decision taken in relation to
the Scheme;
(iii) any loss or reduction of any rights or expectation under the
Scheme in any circumstances or for any reason (including lawful
or unlawful termination of employment or the employment
relationship);
(iv) the operation or amendment of the Scheme (whether to the
detriment of the Employee or otherwise); and
(v) any other decision taken which affects the Scheme or its
operation (whether to the detriment of the Employee or
otherwise).
11.7.5 Participation in the Scheme is permitted only on the basis that any
rights as might otherwise arise are excluded and, in consideration
for, and as a condition to, participating in the Scheme, the
Employee waives all and any such rights.
11.7.6 Nothing in this Scheme confers any benefit, right or expectation on
a person who is not an Employee and no such third party will have
any rights under the Contracts (Rights of Third Parties) Act 1999 to
enforce any term of this Scheme, but this does not affect any right
or remedy of a third party which exists or is available other than
those available under that Act.
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11.7.7 For the avoidance of doubt, this rule will apply throughout any
Employee's employment and will continue to apply even where an
Employee has given or received notice to terminate his employment
(whether such termination is lawful or unlawful) and following the
termination of his employment (whether such termination is lawful or
unlawful).
11.8 Employee Trust
The Company and any Subsidiary may provide money to the trustee of any
trust or any other person to enable them or him to acquire Shares to be
held for the purposes of the Scheme, or enter into any guarantee or
indemnity for those purposes, to the extent permitted by Section 153 of the
Companies Act 1985.
11.9 Withholding
The Company, any employing company or the trustees of any employee benefit
trust may withhold any amount and make any such arrangements as it
considers necessary to meet any liability to taxation or social security
contributions in respect of Options granted to an Optionholder. These
arrangements may include the sale of any Shares on behalf of the
Optionholder, unless the Optionholder discharges the liability himself.
12 Changing the Scheme and Termination
12.1 Directors' powers
Except as described in the rest of this Rule 12 the Directors may at any
time change the Scheme in any way.
12.2 Shareholder approval
12.2.1 Except as described in Rule 12.2.2, the Company in general meeting
must approve in advance by ordinary resolution any proposed change
to the advantage of present or future Optionholders, which relates
to the following:
(i) the persons to or for whom Shares may be provided under the
Scheme;
(ii) the limitations on the number of Shares which may be issued
under the Scheme;
(iii) the individual limit for each Optionholder under the Scheme;
(iv) the determination of the Option Price;
(v) any rights attaching to the Options and the Shares;
(vi) the rights of Optionholders in the event of a capitalisation
issue, rights issue, sub-division or consolidation of shares or
reduction or any other variation of capital of the Company;
(vii) the terms of this Rule 12.2.1.
12.2.2 The Directors need not obtain the approval of the Company in general
meeting for any minor changes:
(i) to benefit the administration of the Scheme;
(ii) to comply with or take account of the provisions of any proposed
or existing legislation;
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(iii) to take account of any changes to the legislation; or
(iv) to obtain or maintain favourable tax, exchange control or
regulatory treatment of the Company, any Subsidiary or any
present or future Optionholder.
12.3 Optionholder approval
The Directors cannot change the Scheme in a way which would adversely
affect the subsisting rights of an Optionholder unless they obtain the
written consent of such number of Optionholders who would acquire 75 per
cent. of the Shares which would be issued or transferred if all Options
granted and subsisting under the Scheme were exercised. Alternatively, the
change may be made by a resolution at a meeting of Optionholders passed by
not less than 75 per cent. of the Optionholders who attend and vote either
in person or by proxy.
For the purpose of this Rule 12.3, the Optionholders will be treated as the
holders of a separate class of share capital. The provisions of the
Articles of Association of the Company relating to class meetings will
apply as far as possible (but altered as may be necessary).
12.4 Overseas Employees
Notwithstanding any other provision of the Scheme, the Directors may amend
or add to the provisions of the Scheme and the terms of Options as they
consider necessary or desirable to take account of, or to mitigate, or to
comply with relevant overseas taxation, securities or exchange control
laws, provided that the terms of Options granted to such Eligible Employees
are not more favourable overall than the terms of Options granted to other
Eligible Employees.
12.5 Notice
As soon as possible after making any change, the Directors will give
written notice to any Optionholder affected by the change.
12.6 Data protection
By participating in the Scheme the Optionholder consents to the holding and
processing of personal data provided by the Optionholder to the Company for
all purposes relating to the operation of the Scheme. These include, but
are not limited to:
12.6.1 administering and maintaining Optionholder records;
12.6.2 providing information to trustees of any employee benefit trust,
registrars, brokers or third party administrators of the Scheme;
12.6.3 providing information to future purchasers of the Company or the
business in which the Optionholder works;
12.6.4 transferring information about the Optionholder to a country or
territory outside the European Economic Area.
12.7 Termination of the Scheme
The Directors may terminate the Scheme at any time. If this is not done,
the Scheme will terminate on the 10th anniversary of the adoption of the
Scheme by the Company, but
Options granted before such termination will continue to be valid and
exercisable as described in these Rules.
13 Governing Law
English law governs the Scheme and all Options and their construction.
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THE ALLIED DOMECQ PLC EXECUTIVE SHARE OPTION SCHEME 1999
US Schedule
The rules of the Allied Domecq PLC Executive Share Option Scheme 1999 (the
"Scheme") will apply to Options granted under this Schedule, subject to the
alterations set out below.
1 Definitions
Words used in the Scheme will have the same meaning in this Part unless
amended as stated below:
"Code" means the United States of America Internal Revenue Code of 1986, as
amended;
"Disability" means the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months;
"Eligible Employee" means
(i) any person who is an employee of the Company or a Subsidiary
Corporation; and
(ii) on the Date of Grant is not within 2 years of his normal retirement
date.
"Incentive Stock Option" means an Option designated by the Directors, at
the Date of Grant, as an Incentive Stock Option within the meaning of
Section 422 of the Code;
"Non Qualifying Stock Option" means any US Option other than an Incentive
Stock Option.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary Corporation" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if, at the
time of the granting of the option, each of the corporations other than the
last corporation in the unbroken chain owns stock possessing 50 per cent or
more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
"US Option" means any Option granted to any Eligible Employee subject to
taxation in the United States with respect to the grant of such Option,
each grant shall specify whether the Option is intended to be an Incentive
Stock Option or a Non qualifying Stock Option.
2 Grant of Options
The Directors may, in their absolute discretion, grant Incentive Stock
Options in accordance with this Schedule.
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3 Limit
Notwithstanding Rule 6.2, in no event shall any US Option be exercisable
after 10 years (or five years, in the case of an individual described in
Section 422(b)(6) of the Code (relating to certain 10% owners)) from the
Date of Grant.
Notwithstanding anything to the contrary, in no event shall the Option
Price of an Incentive Stock Option be less than 100% (or 110%, in the case
of an individual described in Section 422(b)(6) of the Code (relating to
certain 10% owners)) of the Market Value of a Share on the date the
Incentive Stock Option is granted.
3.1 Individual Limits
To the extent that the aggregate Market Value of Shares, determined as of
the Date of Grant of an Incentive Stock Option, of the Shares for which any
Optionholder may be awarded Incentive Stock Options which are first
exercisable during any calendar year under the Plan (or any of the stock
option plan required to be taken into account under Section 422(d) of the
Code) by the Optionholder exceeds US$100,000, the portion of such grant
that exceeds US$100,000 shall constitute a Non-qualifying Stock Option. To
the extent that an Incentive Stock Option fails to meet any of the other
requirements of Section 422 of the Code, such US Option shall constitute a
Non-qualifying Stock Option.
3.2 Scheme Limits
The aggregate number of Shares subject to options granted under this
Schedule will not exceed the lower of the limits set out in Rule 5 of the
Scheme and 18,000,000 Shares. This number of Shares may be adjusted, for
example, to take account of any variation in the share capital of the
Company.
3.3 Option Price
The Option Price of an Incentive Stock Option will be not less than the
Market Value of a Share determined at the Date of Grant.
3.4 Transfer of Options
An Incentive Stock Option may not be transferred, assigned or otherwise
disposed of other than by will or the laws of descent and distribution, and
during the lifetime of such individual, must not be exercisable by any
other person.
3.5 Holding Requirement
If Shares acquired upon exercise of an Incentive Stock Option are disposed
of in a disqualifying disposition within the meaning of Section 422 of the
Code by an Optionholder prior to the expiration of either two years from
the Date of Grant of such option or one year from the transfer of Shares to
the Optionholder pursuant to the exercise of such option, or in any other
disqualifying disposition within the meaning of Section 422 of the Code,
such Optionholder shall notify the Company in writing as soon as
practicable thereafter of the date and terms of such disposition and, if
the Company (or any affiliate thereof) thereupon has a tax-withholding
obligation, shall pay to the Company (or such affiliate) an amount equal to
any withholding tax the Company (or affiliate) is required to pay as a
result of the disqualifying disposition.
The Directors may, in their discretion, require the Optionholder to pay to
the Company, by any means approved by the Directors at the time of exercise
of any US Option (including withholding on any amounts payable to the
Optionholder), the amount that the Directors
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deem necessary to satisfy the Company's obligation to withhold federal,
state or local income or other taxes incurred by reason of the exercise of
any US Option. Where the exercise of a US Option does not give rise to an
obligation by the Company to withhold federal, state or local income or
other taxes on the date of exercise, but may give rise to such an
obligation in the future, the Directors may, in their discretion, make such
arrangements and impose such requirements as it deems necessary or
appropriate. The Optionholder's satisfaction of any tax-withholding
requirements imposed by the Directors shall be a condition precedent to the
Company's obligation as may otherwise be provided hereunder to provide
Shares to the Optionholder, and the failure of the Optionholder to satisfy
such requirements with respect to the exercise of a US Option shall cause
such option to be forfeited.
This US Schedule shall be (and any grant thereunder) subject in its
entirety to approval by the shareholders of the Company within 12 months
before or after its adoption by the Directors.
3.6 Disability
An Option will lapse 12 months after an Optionholder ceases to be an
Eligible Employee by reason of his Disability.
4 Regulations and Approvals
4.1 The obligation of the Company to sell Shares with respect to Options
granted under this US Schedule shall be subject to all applicable laws,
rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Directors.
4.2 Each Option is subject to the requirement that, if at any time the
Directors determines, in their discretion, that the listing, registration
or qualification of Shares issuable pursuant to this US Schedule is
required by any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option
or the issuance of Shares, no Options shall be granted or payment made or
Shares issued, in whole or in part under this US Schedule, unless listing,
registration, qualification, consent or approvals has been effected or
obtained free of any conditions in a manner acceptable to the Directors.
4.3 In the event that the disposition of Shares acquired pursuant to this US
Schedule is not covered by a then current registration statement under the
Securities Act, and is not otherwise exempt from such registration, such
Shares shall be restricted against transfer to the extent required under
the Securities Act, and the Committee may require any individual receiving
Shares pursuant to this US Schedule, as a condition precedent to receipt of
such Shares, to represent to the Company in writing that the Shares
acquired by such individual are acquired for investment only and not with a
view to distribution and that such Shares will be disposed of only if
registered for sale under the Securities Act or if there is an available
exemption for such disposition.
4.4 Notwithstanding any other provision of this US Schedule or the Scheme, the
Company shall not be required to take any action which in its discretion it
believes could reasonably be deemed to result in a violation of Section
13(k) of the US Securities Exchange Act of 1934, as amended.
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5 Governing Law
Options granted pursuant to this US Schedule will be governed by and
construed in accordance with English law except that Options intended to be
Incentive Stock Options will be construed in accordance with the provisions
of Section 422 of the Code so as to preserve their status as Incentive
Stock Options.
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