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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 5/06/10 Shire plc 10-Q 3/31/10 43:4.2M Davis Polk & … LLP 01/FA |
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PART
A – STOCK-SETTLED STOCK APPRECIATION RIGHTS AWARDS
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1.
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INTERPRETATION
AND CONSTRUCTION
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1
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1.1
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Definitions
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1
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1.2
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Meaning of
ceasing to be employed within the Group
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4
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1.3
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Construction
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5
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1.4
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Governing
law
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5
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1.5
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Administration
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5
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1.6
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Disputes
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5
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2.
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ELIGIBILITY
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5
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3.
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GRANT OF SAR
AWARDS
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6
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3.1
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Operation of
Part A of the Plan
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6
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3.2
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Grant of SAR
Awards
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6
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3.3
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Shares or
ADSs comprised in a SAR Award
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7
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3.4
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Adjustment of
Performance Targets
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7
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3.5
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Deed of grant
for SAR Awards
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8
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4.
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INDIVIDUAL
LIMIT
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8
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5.
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VESTING OF
SAR AWARDS
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8
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5.1
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General
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8
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5.2
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Vesting of
SAR Awards
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8
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5.3
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Notification
to Participant
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9
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6.
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EXERCISE OF
SAR AWARDS AND RELEASE OF SHARES
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9
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6.1
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Exercise of
SAR Awards
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9
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6.2
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Share Dealing
Code
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10
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6.3
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Issue or
Transfer of Shares on exercise of a Vested SAR Award
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10
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7.
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RESTRICTIONS
UPON VESTING
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11
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7.1
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General
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11
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7.2
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Lapsing of
SAR Awards
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11
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7.3
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Cessation of
employment - general
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11
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7.4
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Cessation of
employment - Vested SAR Awards
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12
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7.5
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Cessation of
employment – Unvested SAR Awards
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12
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7.6
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Death of a
Participant
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13
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8.
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LAPSE OF SAR
AWARDS
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13
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9.
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CHANGE IN
CONTROL AND LIQUIDATION
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14
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9.1
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General
Offer
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14
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9.2
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Part 18
Companies (Jersey) Law 1991
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14
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9.3
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Article 125
Companies (Jersey) Law 1991
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14
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9.4
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Winding-up
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14
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9.5
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Vesting of
SAR Awards
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14
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9.6
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Exchange of
SAR Awards
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15
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9.7
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Overriding
Provision
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16
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10.
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NON-TRANSFERABILITY
OF SAR AWARDS
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17
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|
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11.
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LOSS OF
OFFICE
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17
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12.
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VARIATION OF
CAPITAL
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17
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12.1
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General
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17
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12.2
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Adjustment of
SAR Awards
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18
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12.3
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Notification
of adjustment
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18
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|
13.
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GENERAL
|
18
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13.1
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Administration
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18
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13.2
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Costs and
expenses
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18
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13.3
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Power of
amendment
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18
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13.4
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Sub
plans
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19
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13.5
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Termination
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19
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14.
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PLAN
LIMITS
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19
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14.1
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General
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19
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14.2
|
Meaning of
terms used in Rule 14
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20
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14.3
|
10% in 10
years for all schemes
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20
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14.4
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5% in 10
years for discretionary schemes
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21
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14.5
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Life of
Plan
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21
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15.
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NOTICES
|
21
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15.1
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To Eligible
Employees and Participants
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21
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15.2
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To the
Company
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22
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15.3
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To the
Trustee
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22
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SCHEDULE -
PERFORMANCE TARGET
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23
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PART
B – PERFORMANCE SHARE AWARDS
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1.
|
INTERPRETATION
AND CONSTRUCTION
|
24
|
|
1.1
|
Definitions
|
24
|
|
1.2
|
Meaning of
ceasing to be employed within the Group
|
27
|
|
1.3
|
Construction
|
27
|
|
1.4
|
Governing
law
|
28
|
|
1.5
|
Administration
|
28
|
|
1.6
|
Disputes
|
28
|
|
2.
|
ELIGIBILITY
|
28
|
|
3.
|
GRANT OF PSA
AWARDS
|
28
|
|
3.1
|
Operation of
Part B of the Plan
|
28
|
|
3.2
|
Grant of PSA
Awards
|
29
|
|
3.3
|
Shares or
ADSs comprised in a PSA Award
|
29
|
|
3.4
|
Adjustment of
Performance Targets
|
30
|
|
3.5
|
Adjustment
for dividends
|
30
|
|
3.6
|
Deed of grant
for PSA Awards
|
31
|
|
4.
|
INDIVIDUAL
LIMIT
|
31
|
|
5.
|
VESTING OF
PSA AWARDS
|
31
|
|
5.1
|
General
|
31
|
|
5.2
|
Vesting of
Awards
|
31
|
|
5.3
|
Notification
to Participant
|
32
|
|
5.4
|
Share Dealing
Code
|
32
|
|
6.
|
RESTRICTIONS
UPON VESTING
|
32
|
|
6.1
|
General
|
32
|
6.2
|
Lapsing of
PSA Awards
|
32
|
|
6.3
|
Cessation of
employment - general
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33
|
|
6.4
|
Cessation of
employment – Unvested PSA Awards
|
33
|
|
6.5
|
Death of a
Participant
|
34
|
|
7.
|
LAPSE OF PSA
AWARDS
|
34
|
|
8.
|
CHANGE IN
CONTROL AND LIQUIDATION
|
34
|
|
8.1
|
General
Offer
|
34
|
|
8.2
|
Part 18
Companies (Jersey) Law 1991
|
35
|
|
8.3
|
Article 125
Companies (Jersey) Law 1991
|
35
|
|
8.4
|
Winding-up
|
35
|
|
8.5
|
Vesting of
PSA Awards
|
35
|
|
8.6
|
Exchange of
PSA Awards
|
36
|
|
8.7
|
Overriding
Provision
|
37
|
|
9.
|
PROCEDURE ON
VESTING
|
37
|
|
9.1
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Issue or
Transfer of Shares
|
37
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9.2
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Withholding
obligations
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38
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9.3
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Provision of
Shares
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38
|
|
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10.
|
NON-TRANSFERABILITY
OF PSA AWARDS
|
39
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|
11.
|
LOSS OF
OFFICE
|
39
|
|
12.
|
VARIATION OF
CAPITAL
|
40
|
|
12.1
|
General
|
40
|
|
12.2
|
Adjustment of
Awards
|
40
|
|
12.3
|
Notification
of adjustment
|
40
|
|
|
|||
13.
|
GENERAL
|
40
|
13.1
|
Administration
|
40
|
|
13.2
|
Costs and
expenses
|
40
|
|
13.3
|
Power of
amendment
|
40
|
|
13.4
|
Sub
plans
|
41
|
|
13.5
|
Termination
|
41
|
|
|
|||
14.
|
PLAN
LIMITS
|
41
|
|
14.1
|
General
|
41
|
|
14.2
|
Meaning of
terms used in Rule 14
|
42
|
|
14.3
|
10% in 10
years for all schemes
|
42
|
|
14.4
|
5% in 10
years for discretionary schemes
|
43
|
|
14.5
|
Life of
Plan
|
43
|
|
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15.
|
NOTICES
|
43
|
|
15.1
|
To Eligible
Employees and Participants
|
43
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|
15.2
|
To the
Company
|
44
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15.3
|
To the
Trustee
|
44
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SCHEDULE -
PERFORMANCE TARGET
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45
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APPENDIX A -
AWARDS TO CANADIAN PARTICIPANTS
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46
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(B)
|
“Associated Company”
means, in relation to the Company (i) any company which has Control of the
Company; and (ii) any company which is under the Control of the Company or
any company referred to in (i)
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(C)
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The “Auditors” are the
auditors for the time being of the Company or in the event of there being
joint auditors, such one of them as the Board shall
select.
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(F)
|
The “Committee” means the
Remuneration Committee of the Board or such other committee or committees
of the Board as may be appointed from time to
time.
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(I)
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“Control” has the
meaning given to it by section 840 of the Income and Corporation Taxes Act
1988.
|
(K)
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A “Dealing Day” is a day
on which the London Stock Exchange is open for the transaction of
business.
|
(M)
|
“Exercise Period” means
the period which starts on the Vesting Date and ends on the 7th
anniversary of the Date of Grant, unless the Committee sets a different
period at the Date of Grant. The different period may not begin earlier
than the Vesting Date nor end later than the 10th
anniversary of the Date of Grant.
|
(a)
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the average
Market Value of a Share or ADS subject to the SAR Award calculated over
three business days up to and including the Date of Grant;
or
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(b)
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such other
price as is set by the Committee at the Date of Grant but not being less
than the Market Value of a Share or ADS, as the case may be, at the Date
of Grant.
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(O)
|
A “Financial Year” means
the period beginning with the first day of the Company’s accounting
reference period and ending with the last day of that
period.
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(P)
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“Grantor” means the
Company where a SAR Award is, or is to be, granted by the Company and the
Trustee where a SAR Award is, or is to be, granted by the
Trustee.
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(ii)
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the period of
42 days commencing on the day after that on which the Company makes an
announcement of its results for the last preceding Financial Year,
half-year or other period;
|
(iv)
|
when, or
shortly after, an Eligible Employee is promoted to a position which
qualifies him to receive a SAR Award or an increased level of SAR
Award;
|
(v)
|
any other
time where, in the discretion of the Committee, exceptional circumstances
exist which justify the grant of SAR
Awards.
|
(R)
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The “Group” means the
Company and its Subsidiaries and “member of the Group” is
to be construed accordingly.
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(S)
|
The “London Stock Exchange”
means the London Stock Exchange plc or any recognised investment exchange
for the purposes of the Financial Services and Markets Act 2000 which may
take over the function of the London Stock Exchange
plc.
|
(T)
|
The “Market Value” of a Share
on any date is the closing mid-market price at which transactions in
shares take place on the London Stock Exchange on that date and the Market
Value of an ADS on any date is the closing mid-market price at which
transactions in ADSs take place on the NASDAQ on that
date.
|
(U)
|
“Part A” means Part A of
the Plan under which SAR Awards can be granted (together with any
applicable Schedule or Appendix).
|
(V)
|
A “Participant” is the
holder of a SAR Award or, where the context admits or requires, his
personal representatives.
|
(W)
|
The “Performance Period” in
respect of a SAR Award is a period set by the Committee at or prior to
grant of a SAR Award.
|
(X)
|
“Performance Target”
means the measure of the financial or other performance of the Company
applied in relation to any SAR Award in accordance with Rule 3.2(A) of
Part A.
|
(iii)
|
his
redundancy, within the meaning of the Employment Right Act 1996 or his job
elimination due to restructuring or a significant diminution of
duties;
|
(v)
|
the business,
or part of the business, in which the Participant works being transferred
or sold to a person which is not a member of the
Group.
|
(Z)
|
The “Plan” means Parts A and
B of this plan (and including the Schedules and any Appendices to the
Rules) as from time to time
amended.
|
(i)
|
for SAR
Awards granted on or before 17th February 2010 only, retirement on or
after the Participant’s normal retirement date as specified in his
contract of employment (or if there is no such date, his 65th
birthday); or
|
(CC)
|
“SAR Award” is a right
to acquire Shares or ADSs granted in accordance with Part A of the
Rules.
|
(i)
|
the numerator
is the number of complete weeks in the relevant period (defined below)
during which the Participant was employed (or would have been employed had
he remained in employment throughout his notice period) within the Group
(in any case where Rule 7 of Part A applies) or prior to the relevant date
(in any case where Rule 9 of Part A applies);
and
|
(GG)
|
The “Trust” means any trust
for the benefit of, inter alia, employees of the Group from time to time
designated by the Committee.
|
(HH)
|
The “Trustee” means the
trustee or trustees for the time being of the Trust or, if there is more
than one, the trustee or trustees of the Trust nominated by the
Committee.
|
(II)
|
“UK Listing Authority”
means the Financial Services Authority acting in its capacity as the competent
authority for the purposes of Part 6 of the Financial Services and Markets
Act 2000 or such other person as is from time to time appointed to be the
competent authority for the purposes of that
Act.
|
(JJ)
|
“Unvested SAR Award”
means any SAR Award or (as the case may be) that part of a SAR Award which
is not a Vested SAR Award.
|
(KK)
|
“Vesting Date” means in
relation to any SAR Award, the date (or dates) on which such SAR Award
vests in accordance with Rule 5.2 or otherwise in accordance with Part A
of the Rules.
|
(LL)
|
“Vested SAR Award”
means, subject to the Rules, a SAR Award, or (as the case may be) that part
of a SAR Award which has vested in accordance with Rule 5.2 or otherwise
in accordance with Part A of the
Rules.
|
(A)
|
For the
purposes of Part A of the Rules, but subject to (B), a Participant is to
be treated as ceasing to be employed within the Group when he is no longer
employed by any company which is a member of the Group. For the avoidance
of doubt, a Participant will cease to be employed by a member of the Group
if the company by which he is employed ceases to be a member of the
Group.
|
(i)
|
in
circumstances where he has a contractual or statutory right to return to
work at the end of the period of leave;
or
|
(A)
|
Where the
context so admits, any reference in Part A of the Plan to the singular
includes the plural and vice versa.
|
(B)
|
Where the
context so admits, any reference in Part A of the Plan to the masculine
includes the feminine.
|
(C)
|
Any reference
in Part A of the Plan to any enactment is, unless otherwise stated, to the
relevant United Kingdom legislation and includes a reference to that
enactment as from time to time modified, extended or
re-enacted.
|
(D)
|
The headings
to the Rules are for reference purposes only and shall not affect the
meaning or construction of the
Rules.
|
2.1
|
The persons
who are eligible to receive SAR Awards are such Eligible Employees as are
selected by the Committee, in its discretion, to participate in the
Plan.
|
(A)
|
The Committee
shall decide whether or not to operate Part A of the Plan on any occasion
and whether SAR Awards should be made by the Company or by the
Trustee.
|
(D)
|
The Committee
shall ensure that Part A of the Plan is not operated at any time, or in
any circumstances, when to do so would contravene the provisions of the
Criminal Justice Act 1993, the Company’s securities dealing code, the
Listing Rules of the UK Listing Authority or any other applicable laws or
regulations.
|
(A)
|
The Committee
shall have absolute discretion to determine whether conditions shall apply
before a SAR Award may vest. Where the Committee determines that
conditions shall apply, those conditions shall
include:
|
(i)
|
a measure or
measures of the financial or other performance of the Group (the “Performance Target”);
and
|
(B)
|
If SAR Awards
are to be granted by the Company and the Committee determines that
Conditions should apply to such SAR Award, the Company will grant a SAR
Award to each relevant Eligible Employee on such
Conditions.
|
(ii)
|
the
Conditions which the Committee recommends should be attached to SAR Awards
and the applicable Performance Period (where
applicable),
|
(D)
|
Appendices to
the Plan may set out special terms applying to Eligible Employees or
Participants in any jurisdiction.
|
(E)
|
Each Eligible
Employee who receives a SAR Award will be given written notice of the SAR
Award and of any Conditions applying to that
Award.
|
(A)
|
In the
circumstances mentioned in Rule 3.4(E), the Committee may change or waive
the Performance Target and/or the additional Conditions (if any) imposed
under Rule 3.2(A).
|
(B)
|
The power to
change includes both the power to adjust and also the power to impose a
replacement Performance Target and/or replacement additional Conditions
and to amend the companies in any comparator
group.
|
(C)
|
The
Committee's power is, however, restricted in that the change must not have
the effect of making the Performance Target or the additional Conditions
either materially easier or materially more difficult to achieve, in the
opinion of the Committee, than it was or they were immediately before the
circumstance in question.
|
(D)
|
Where the
Committee exercises its power to waive the Performance Target or the
additional Conditions, the Committee is not required to impose a
replacement Performance Target and/or replacement additional
Conditions.
|
(iii)
|
any event or
events as a result of which the Committee considers it fair and reasonable
to change or waive the Performance Target and/or the additional Conditions
or to amend the companies in any comparator
group.
|
(F)
|
In any case
where the Grantor is the Trustee, the Committee must tell the Trustee
before setting or changing or waiving the Performance Target or other
Conditions.
|
(A)
|
Except in
circumstances determined by the Committee to be exceptional, each SAR
Award must be limited and must therefore take effect, so that the total
Market Value of the Shares, or ADSs as the case may be, under a SAR Award,
in respect of each Participant does not exceed six times the individual’s
pay (see (B)) annually.
|
(B)
|
The pay of a Participant on
any date is the annual rate of his basic pay (excluding bonuses,
commissions and benefits in kind) from all members of the Group on that
date.
|
(i)
|
third
anniversary of the Date of Grant in the case of Participants who hold SAR
Awards which are not subject to a Performance Target and/or Conditions;
and
|
(ii)
|
third
anniversary of the Date of Grant if the Committee determines that the
Performance Target and any other Conditions imposed under Rule 3.2(A) have
been satisfied and that, in the opinion of the Committee, the underlying
performance of the Company is sufficient to justify the vesting of a SAR
Award in the case of Participants who hold SAR Awards which are subject to
a Performance Target and/or
Conditions,
|
(B)
|
If the
Committee so determines on or prior to the Date of Grant, SAR Awards for
individuals who are not directors of the Company and who do not hold the
position of Executive Vice-President of the Company may vest on such other
date, or may vest in tranches on such other dates, as the Committee may
determine provided that the first vesting may not be earlier than the
first anniversary of the Date of Grant. Where a SAR Award vests in
tranches on more than one date, the Committee shall determine the
proportion of the SAR Award which vests on each such
date.
|
(C)
|
If the
Participant’s SAR Award does not vest, or does not vest in full, on the
specified date then the SAR Award or, as the case may be, the unvested
portion of it, shall lapse.
|
(A)
|
The
Participant may exercise his Vested SAR Award during the Exercise Period
or at such other times as the Rules permit. Where a SAR Award is
exercisable, it may be exercised in whole or in part from time to
time.
|
(B)
|
To exercise a
SAR Award, a Participant must give notice to the Company or such other
person as the Committee may direct. As soon as reasonably practicable
after receipt of the notice, the Company must tell the Trustee if the
Trustee is the Grantor. The notice of exercise must be in such form, and
be accompanied by such other documents, as the Committee may
decide.
|
(C)
|
Unless the
Company and the Participant agree a later date, the date of exercise of a
Vested SAR Award will be the earlier
of:
|
(i)
|
the second
Dealing Day after the date on which the notice of exercise, complete in
all material respects, is received by the Company (or by such other person
as the Committee may have directed);
and
|
(ii)
|
the date on
which the Committee approves the exercise of the SAR Award, the notice of
exercise, complete in all respects, having been received by the Company
(or by such other person as the Committee may have
directed).
|
(A)
|
At any time
when the buying or selling of securities by a director or employee of the
Company would breach the Company’s code of practice on dealings in shares
and other securities, a Participant may not exercise a Vested SAR
Award.
|
(B)
|
The
restriction in (A) applies even if the Participant is not at that time
forbidden by the code from buying or selling securities. The restriction
does not, however, apply if permission is
given:
|
(i)
|
in the case
of a Participant who is bound by that code in accordance with the
procedures laid down in the code;
or
|
(ii)
|
in the case
of any other Participant, by such person as the Committee may nominate for
this purpose.
|
(A)
|
Subject to
(B) below, within 30 days of the date of exercise of a Vested SAR Award
the Company shall:
|
(i)
|
any necessary
consents or approvals as may be required by any competent authority having
first been obtained and, in the case of ADSs, to the provisions of the
deposit arrangement between the Company and the depositary bank for the
Company’s ADS programme;
|
(ii)
|
if the
Trustee is unable to transfer Shares or ADSs to the Participants whether
due to it holding insufficient Shares or ADSs or other assets to enable it
to meet such SAR Award or otherwise; or any such transfer would be
unlawful in any relevant jurisdiction; or in making such a transfer the
Trustee would be in breach of its duties under the Trust, the obligations
of the Trustee under the Plan and the SAR Award shall
lapse.
|
(C)
|
If the
obligations of the Trustee lapse under (B), the Company shall procure that
any Shares or ADSs not so transferred by the Trustee to which the
Participant is entitled under the Rules (ignoring Rule 6.3(B)) are issued
by the Company or are transferred to the relevant Participant, either by
the Trustee or by some other person, as soon as reasonably
practicable.
|
(D)
|
Where a
Participant is liable to tax, duties or other amounts on the exercise of a
Vested SAR Award and the Participant’s employer or former employer is
liable to make a payment to the appropriate authorities on account of that
liability:
|
(i)
|
on the
exercise of a Vested SAR Award the Company or the Trustee will sell on
behalf of the Participant sufficient Shares or ADSs issued or transferred
to the Participant so that the net proceeds of sale equal the minimum
payment which the employer or former employer is required to pay to the
appropriate authorities on behalf of the Participant. Where such Shares or
ADSs are sold by the Trustee, the Trustee will account to the employer or
former employer for the net proceeds of sale. The Company will procure
that an amount equal to those net proceeds is remitted to the appropriate
authorities on behalf of the
Participant;
|
(ii)
|
where it is
not possible for the Company or the Trustee to act in the way described in
(i) above, or where the Participant so elects, the Participant must make
alternative arrangements for the payment of the amount due to the
appropriate authorities on the exercise of a Vested SAR Award to the
satisfaction of the Participant’s employer or former
employer.
|
(A)
|
Unless any of
the following provisions apply, if a Participant’s employment within the
Group ends for any reason whatsoever, his SAR Award will lapse on the date
on which
|
(ii)
|
but for this
Rule, his SAR Award would lapse (in whole or in part) on his employment
ending; and
|
(iii)
|
under the
laws of the country in which the Participant works or lives or to which he
is subject, such lapsing is unlawful or may render the Participant’s
employer liable to some
disadvantage,
|
(A)
|
This Rule
applies if a Participant's employment within the Group ends at a time when
he holds a Vested SAR Award and his employment ends for a reason other
than Cause or death.
|
(B)
|
In these
circumstances, the Participant may exercise his Vested SAR Award in
accordance with Rule 6.1 during the period of 12 months starting with the
date of cessation of employment or such shorter period as the Committee
may decide.
|
(A)
|
This Rule
applies if a Participant’s employment within the Group ends at a time when
he holds an Unvested SAR Award and his employment
ends:
|
(ii)
|
for any
reason other than a Permitted Reason or death and the Committee, in its
absolute discretion, decides that this Rule will apply in relation to that
SAR Award.
|
(B)
|
Subject to
(C), the Participant’s SAR Award shall become a Vested SAR Award (if at
all) in respect of the number of Shares or ADSs determined in accordance
with Rule 5.1 by applying that Rule, as the Committee may decide,
either:
|
(i)
|
in the case
of SAR Awards with a Performance Target and/or Conditions by deeming the
Performance Period to have ended on the date on which
the
|
(ii)
|
in respect of
SAR Awards where there is no Performance Target or other Conditions, at
the date on which the Participant’s employment
ends.
|
(C)
|
The number of
Shares or ADSs in respect of which the SAR Award may become a Vested SAR
Award will be reduced by the Service Factor, unless the Committee, in its
absolute discretion, determines
otherwise.
|
(D)
|
Where a SAR
Award becomes a Vested SAR Award, a Participant may exercise his Vested
SAR Award in accordance with Rule 6.1 during the period of 12 months
starting on the date of cessation of employment. To the extent that a
Vested SAR Award is not exercised during this period, it will
lapse.
|
(A)
|
If a
Participant dies holding an Unvested SAR Award, the SAR Award will become
a Vested SAR Award on the date of death and the number of Shares or ADSs
in respect of which the SAR Award may become a Vested SAR Award will be
reduced by the Service Factor, unless the Committee, in its absolute
discretion, determines otherwise.
|
(B)
|
In respect of
SAR Awards with a Performance Target and/or Conditions, they will cease to
apply upon the death of a
Participant.
|
(C)
|
Where a SAR
Award becomes a Vested SAR Award, the personal representative may exercise
the Vested SAR Award in accordance with Rule 6.1 during the period of 12
months starting on the date of death. To the extent that a Vested SAR
Award is not exercised during this period, it will
lapse.
|
(E)
|
If a
Participant dies holding a Vested SAR Award, the personal representative
may exercise the Vested SAR Award in accordance with Rule 6.1 during the
period of 12 months starting on the date of death. To the extent that a
Vested SAR Award is not exercised during this period, it will
lapse.
|
(i)
|
a general
offer to acquire the whole of the issued ordinary share capital of the
Company (which is made on a condition that if it is satisfied the person
making the offer will have Control of the Company);
or
|
(ii)
|
a general
offer to acquire all the shares in the Company which are of the same class
as the Shares,
|
(A)
|
In the
circumstances referred to in Rules 9.1 to 9.3, if the Participant has an
Unvested SAR Award, then it will become a Vested SAR Award, subject, where
a Performance Target and/or Conditions apply, also to Rule 9.5(B), as
follows:
|
(i)
|
where one
year or less has elapsed since the Date of Grant, in respect of one-third
of the number of Shares or ADSs subject to the SAR Award;
or
|
(ii)
|
where between
one and two years have elapsed since the Date of Grant, in respect of
two-thirds of the number of Shares or ADSs subject to the SAR Award;
or
|
(iii)
|
where between
two and three years have elapsed since the Date of Grant, in respect of
the full number of Shares or ADSs subject to the SAR
Award
|
(B)
|
In respect of
SAR Awards with a Performance Target and/or Conditions, unless the
Committee in its absolute discretion determines otherwise, the SAR Award
will only become a Vested SAR Award to the extent that the Committee
determines that the Performance Target and any other Conditions imposed
under Rule 3.2(A) of Part A have been satisfied on the basis that the
Performance Period is deemed to have ended on the date of the event
referred to in Rules 9.1 to 9.3. Any pro-rating required by Rule 9.5(A)
will apply to reduce the Vested SAR Award determined under this Rule
9.5(B).
|
(C)
|
To the extent
that a SAR Award does not become a Vested SAR Award in accordance with
this Rule 9.5, subject to Rule 9.6, it shall
lapse.
|
(D)
|
Where a SAR
Award becomes a Vested SAR Award or where a Participant already holds a
Vested SAR Award, a Participant may exercise the Vested SAR Award in
accordance with Rule 6.1 during the appropriate period (see (E)). To the
extent that a Vested SAR Award is not exercised during the appropriate
period, it will lapse.
|
(i)
|
in a case
falling within Rule 9.1, twelve months beginning 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;
|
(ii)
|
in a case
falling within Rule 9.2, the period during which the acquiring company
remains so bound or entitled; and
|
(iii)
|
in a case
falling within Rule 9.3, twelve months beginning with the date on which
the compromise or arrangement is sanctioned by the
court.
|
(A)
|
In the
circumstances referred to in Rules 9.1 to 9.3, if a company obtains
Control of the Company a Participant may, if the acquiring company so
agrees and within the Relevant Period, release his SAR Award (the old award) in
consideration of the grant to him of an award over shares in the acquiring
company or a member of the acquiring company’s group (the new
award).
|
(i)
|
in a case
falling within Rule 9.1, six months beginning 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;
|
(ii)
|
in a case
falling within Rule 9.2, the period during which the acquiring company
remains so bound or entitled; and
|
(iii)
|
in a case
falling within Rule 9.3, six months beginning with the time when the court
sanctions the compromise or
arrangement.
|
(i)
|
the new award
will vest in the same way as the old award and will vest on the first date
on which the old award could have become a Vested SAR
Award;
|
(ii)
|
the Rules
will apply to the new award as if references to Shares were references to
the shares in respect of which the new award is
granted;
|
(iii)
|
the Rules
will apply to the new award as if references to the Company (including any
such references as occur in expressions which are defined in Rule 1.1 and
are used in those Rules) were references to the company in respect of
whose shares the new award is
granted;
|
(v)
|
the existing
Performance Target and/or Conditions shall continue to apply to the new
award, unless the Committee determines that a replacement Performance
Target and/or Conditions should
apply.
|
(D)
|
If a
Participant’s old award is an Unvested SAR Award, the Committee may
determine that the Participant will be deemed to have agreed to the
release of his old award in return for the grant of a new award under Rule
9.6.
|
(E)
|
Where this
Rule 9.6 applies and a Participant agrees to exchange his SAR Award for an
award over shares in the acquiring company (or a member of the acquiring
company’s group), his SAR Award shall not
vest.
|
(i)
|
there occurs
an arrangement as a result of which the Company will be under the Control
of another company; and
|
(a)
|
the persons
who will own shares in the acquiring company immediately after the
arrangement will be substantially the same as the persons who own shares
in the Company immediately before the arrangement;
or
|
(b)
|
in relation
to SAR Awards granted after 17 February 2010, the Committee determines
that this provision should apply;
and
|
(iii)
|
Participants
are to be offered replacement awards which satisfy the requirements for a
new award set out in Rule 9.6,
|
(B)
|
If a
Participant transfers, assigns, charges, encumbers or otherwise alienates
a SAR Award or creates in favour of any third party any interest therein
or, in any case, attempts so to do, or a bankruptcy order is made in
respect of the Participant (or any similar event occurs under the laws of
any other country), the SAR Award shall
lapse.
|
(A)
|
The
participation in Part A of the Plan by a Participant is a matter entirely
separate from, and shall not affect, the Participant’s pension rights and
terms of employment.
|
(B)
|
In particular
(but without limitation), if a Participant for any reason whatsoever
ceases to be employed by a member of the Group (whether or not such
cessation involves breach, or alleged breach, of contract by the Company)
or to be entitled to receive a SAR Award or Vested SAR Award, the
Participant is not entitled to any rights or benefits under the Plan save
as specifically provided elsewhere in these Rules and is not entitled to
any compensation by reference to the rights granted to, or the benefits
capable of being received by, the Participant under Part A of this Plan or
for any loss or diminution in value in such rights or
benefits.
|
(A)
|
Subject to
the rest of this Rule 12, the Committee shall adjust each SAR Award in
such manner as it decides to be appropriate, with the consent of the
Trustee where the Grantor is the Trustee. The Committee’s decision will be
final.
|
(B)
|
For the
avoidance of doubt, the Committee shall adjust each SAR Award which has
vested but has not yet been exercised or SAR Award which has been
exercised but in respect of which Shares or ADSs have not yet been issued
or transferred in a manner which is equitable to SAR Award
holders.
|
(C)
|
The Committee
shall determine how such adjustment shall be carried out. The Committee’s
decision shall be final and binding on each
Participant.
|
(A)
|
Save as
otherwise provided in the Rules of Part A, the Committee shall administer
Part A of the Plan.
|
(B)
|
The Committee
may from time to time make and amend such regulations for the
implementation and administration of Part A of the Plan as it thinks
fit.
|
(A)
|
The Committee
may at any time and from time to time amend Part A of the Plan in any
respect provided that:
|
(i)
|
subject to
Rule 13.3(B), no amendment may be made to the advantage of Eligible
Employees or Participants to any provision of the Rules without the prior
approval of the Company in general meeting,
and
|
1
|
Rule 12.2(B)
and (C) amended by resolution on 23 June 2008, pursuant to a resolution of
the Implementation Committee dated 15 April
2008.
|
(ii)
|
no amendment
shall be made which would affect adversely any of the subsisting rights of
a Participant except either with the Participant’s consent in writing or
the consent of the majority of the Participants affected by the amendment
or addition.
|
(B)
|
Notwithstanding
the limitation contained in Rule 13.3(A), the Committee may without the
prior approval of the Company in general
meeting:
|
(i)
|
amend Part A
of the Plan in order to take account of any amendments to any applicable
legislation or to obtain or maintain favourable tax, exchange control or
regulatory treatment for Participants or any member of the Group;
or
|
(C)
|
The Committee
must give written notice to all Participants of any amendment made in
accordance with this Rule 13.3 which affects their rights in any material
respect.
|
(i)
|
allocate means the issue
of new Shares or the transfer of treasury shares in satisfaction of a
person’s rights under an award;
|
(ii)
|
an award means any option
or other right to acquire or receive Shares whether conditional or
unconditional and whether or not for
payment;
|
(iii)
|
a discretionary scheme is
a scheme in which those taking part are senior employees and directors
chosen at the discretion of the body administering the
scheme;
|
(iv)
|
an employee share scheme
means any scheme for employees of the Group which has been approved by the
Company in general meeting;
|
(v)
|
equity share capital has
the same meaning as in section 548 of the Companies Act 2006 but, for the
avoidance of doubt, will include any treasury
shares;
|
(vi)
|
no account
will be taken of Shares acquired by an employee or former employee (or the
personal representatives of such a person) where the Shares are acquired
for a price equal to their Market Value at or about the date of
acquisition and the cost of those Shares is borne by the employee or
former employee (or his estate);
|
(vii)
|
subject to
(viii), no account will be taken of an award if, and to the extent that,
the Committee considers that it will be satisfied by the transfer of
existing Shares other than treasury shares;
and
|
(viii)
|
any Shares
allocated to the trustee of any trust which were used to satisfy awards
granted under an employee share scheme must be treated as having been
allocated in respect of those awards unless the Shares were acquired by
the trustee pursuant to a rights issue or other opportunity offered to the
trustee in respect of Shares other than Shares previously allocated to
it.
|
(i)
|
Shares
allocated in respect of awards granted within the previous 10 years under
any employee share scheme,
|
(ii)
|
Shares
remaining to be allocated in respect of awards granted on the same date or
within the previous 10 years under any employee share scheme,
and
|
(iii)
|
Shares
allocated on the same date or within the previous 10 years under any
employee share scheme otherwise than in respect of an
award.
|
(i)
|
Shares
allocated in respect of awards granted within the previous 10 years under
any discretionary employee share
scheme,
|
(ii)
|
Shares
remaining to be allocated in respect of awards granted on the same date or
within the previous 10 years under any discretionary employee share
scheme, and
|
(iii)
|
Shares
allocated on the same date or within the previous 10 years under any
discretionary employee share scheme otherwise than in respect of an
award.
|
(A)
|
Any notice or
document to be given to any Eligible Employee or Participant may be given
through normal internal communications or by personal delivery or by
sending it by ordinary post to the individual’s last known address or by
e-mail or other electronic
transmission.
|
(B)
|
Where a
notice or document is sent by post it shall be deemed to have been
received 72 hours after it was put into the post properly addressed and
stamped.
|
(C)
|
All notices
and documents sent by post will be sent at the risk of the Eligible
Employee or Participant concerned. Neither the Company nor any of its
Subsidiaries nor the Trustee shall have any liability whatsoever to any
Eligible Employee or Participant in
|
(a)
|
The
Performance Targets will be based on Non GAAP EBITDA and adjusted return
on invested capital (“ROIC”), as computed by
the Company, using information derived from the Company’s audited accounts
and adjusted to ensure a consistent and equitable basis of measurement, as
approved by the Remuneration Committee, including the add back of
significant one time items.
|
(b)
|
Where the
Performance Target is imposed the SAR Award will be split between a base
award (being one quarter of the total award made) and a performance award.
Multiples of the base award will vest at the end of the performance period
depending on the achievement of performance against the
matrix.
|
Adjusted
ROIC
|
EBITDA growth (CAGR 2009-2012) | ||||
Increase
bp p.a.
|
8%
|
10%
|
12%
|
14%
|
16%
|
10
|
1.0x
|
1.3x
|
1.7x
|
2.1x
|
2.5x
|
20
|
1.3x
|
1.6x
|
2.0x
|
2.4x
|
2.8x
|
40
|
1.6x
|
1.9x
|
2.4x
|
2.7x
|
3.1x
|
60
|
1.9x
|
2.3x
|
2.6x
|
3.1x
|
3.5x
|
80
|
2.2x
|
2.6x
|
3.1x
|
3.6x
|
4.0x
|
100
|
2.5x
|
3.0x
|
3.5x
|
4.0x
|
4.0x
|
(B)
|
“Associated Company”
means, in relation to the Company (i) any Company which has Control of the
Company; and (ii) any company which is under the Control of the Company or
any company referred to in (i)
|
(C)
|
The “Auditors” are the
auditors for the time being of the Company or in the event of there being
joint auditors, such one of them as the Board shall
select.
|
(F)
|
The “Committee” means the
Remuneration Committee of the Board or such other committee or committees
of the Board as may be appointed from time to
time.
|
(I)
|
“Control” has the
meaning given to it by section 840 of the Income and Corporation Taxes Act
1988.
|
(K)
|
A “Dealing Day” is a day
on which the London Stock Exchange is open for the transaction of
business.
|
(M)
|
A “Financial Year” means
the period beginning with the first day of the Company’s accounting
reference period and ending with the last day of that
period.
|
(N)
|
“Grantor” means the
Company where a PSA Award is, or is to be, granted by the Company and the
Trustee where a PSA Award is, or is to be, granted by the
Trustee.
|
(i)
|
the period of
42 days commencing on the day on which Part B of the Plan is adopted by
the Company;
|
(ii)
|
the period of
42 days commencing on the day after that on which the Company makes an
announcement of its results for the last preceding Financial Year,
half-year or other period;
|
(iv)
|
when, or
shortly after, an Eligible Employee is promoted to a position which
qualifies him to receive a PSA Award or an increased level of PSA
Award;
|
(v)
|
any other
time where, in the discretion of the Committee, exceptional circumstances
exist which justify the grant of PSA
Awards.
|
(P)
|
The “Group” means the
Company and its Subsidiaries and “member of the Group” is to be construed
accordingly.
|
(Q)
|
The “London Stock Exchange”
means the London Stock Exchange plc or any recognised investment exchange
for the purposes of the Financial Services and Markets Act 2000 which may
take over the function of the London Stock Exchange
plc.
|
(R)
|
The “Market Value” of a Share
on any date is the closing mid-market price at which transactions in
shares take place on the London Stock Exchange on that date and the Market
Value of an ADS on any date is the closing mid-market price at which
transactions in ADSs take place on the NASDAQ on that
date.
|
(T)
|
“Part B” means Part B of
the Plan under which PSA Awards can be granted (together with any
applicable Schedule or Appendix).
|
(U)
|
A “Participant” is the
holder of a PSA Award or, where the context admits or requires, his
personal representatives.
|
(V)
|
The “Performance Period” in
respect of a PSA Award is a period set by the Committee at or prior to
grant of a PSA Award.
|
(W)
|
“Performance Target”
means the measure of the financial or other performance of the Company
applied in relation to any PSA Award in accordance with Rule 3.2(A) of
Part B.
|
(v)
|
the business,
or part of the business, in which the Participant works being transferred
or sold to a person which is not a member of the
Group.
|
(Y)
|
The “Plan” means Parts A and
B of this plan (and including the Schedules and any Appendices to the
Rules) as from time to time
amended.
|
(i)
|
for PSA
Awards granted on or before 17th February 2010 only, retirement on or
after the Participant’s normal retirement date as specified in his
contract of employment (or if there is no such date, his 65th
birthday); or
|
(i)
|
the numerator
is the number of complete weeks in the relevant period (defined below)
during which the Participant was employed (or would have been employed had
he remained in employment throughout his notice period) within the Group
(in any case where Rule 6 of Part B applies) or prior to the relevant date
(in any case where Rule 8 of Part B applies);
and
|
(EE)
|
The “Trust” means any trust
for the benefit of, inter alia, employees of the Group from time to time
designated by the Committee.
|
(FF)
|
The “Trustee” means the
trustee or trustees for the time being of the Trust or, if there is more
than one, the trustee or trustees of the Trust nominated by the
Committee.
|
(GG)
|
“UK Listing Authority”
means the Financial Services Authority acting in its capacity as the competent
authority for the purposes of Part 6 of the Financial Services and Markets
Act 2000 or such other person as is from time to time appointed to be the
competent authority for the purposes of that
Act.
|
(HH)
|
“Unvested PSA Award”
means any PSA Award or (as the case may be) that part of a PSA Award which is
not a Vested PSA Award.
|
(II)
|
“Vested PSA Award”
means, subject to the Rules, a PSA Award, or (as the case may be) that part of a
PSA Award which has vested in accordance with Rule 5.2 or otherwise of
Part B.
|
(JJ)
|
“Vesting Date” means in
relation to any PSA Award, the date or dates on which such PSA Award
vests.
|
(A)
|
For the
purposes of Part B of the Rules, but subject to (B), a Participant is to
be treated as ceasing to be employed within the Group when he is no longer
employed by any company which is a member of the Group. For the avoidance
of doubt, a Participant will cease to be employed by a member of the Group
if the company by which he is employed ceases to be a member of the
Group.
|
(i)
|
in
circumstances where he has a contractual or statutory right to return to
work at the end of the period of leave;
or
|
(A)
|
Where the
context so admits, any reference in Part B of the Plan to the singular
includes the plural and vice versa.
|
(B)
|
Where the
context so admits, any reference in Part B of the Plan to the masculine
includes the feminine.
|
(C)
|
Any reference
in Part B of the Plan to any enactment is, unless otherwise stated, to the
relevant United Kingdom legislation and includes a reference to that
enactment as from time to time modified, extended or
re-enacted.
|
(D)
|
The headings
to the Rules are for reference purposes only and shall not affect the
meaning or construction of the
Rules.
|
(A)
|
The Committee
shall decide whether or not to operate Part B of the Plan on any occasion
and whether PSA Awards should be made by the Company or by the
Trustee.
|
(D)
|
The Committee
shall ensure that Part B of the Plan is not operated at any time, or in
any circumstances, when to do so would contravene the provisions of the
Criminal Justice Act 1993, the Company’s share dealing code, the Listing
Rules of the UK Listing Authority or any other applicable laws or
regulations.
|
(A)
|
The Committee
shall have absolute discretion to determine whether conditions shall apply
before a PSA Award may vest. Where the Committee determines that
conditions shall apply, those conditions shall
include:
|
(i)
|
a measure or
measures of the financial or other performance of the Group (the “Performance Target”);
and
|
(B)
|
If PSA Awards
are to be granted by the Company and the Committee determines that
Conditions should apply to such PSA Award, the Company will grant a PSA
Award to each relevant Eligible Employee on such
Conditions.
|
(ii)
|
the
Conditions which the Committee recommends should be attached to PSA Awards
and the applicable Performance Period (where
applicable),
|
(D)
|
Appendices to
the Plan may set out special terms applying to Eligible Employees or
Participants in any jurisdiction.
|
(E)
|
Each Eligible
Employee who receives a PSA Award will be given written notice of the PSA
Award and of any Conditions applying to that PSA
Award.
|
(A)
|
In the
circumstances mentioned in Rule 3.4(E), the Committee may change or waive
the Performance Target and/or the additional Conditions (if any) imposed
under Rule 3.2(A).
|
(B)
|
The power to
change includes both the power to adjust and also the power to impose a
replacement Performance Target and/or replacement additional Conditions
and to amend the companies in any comparator
group.
|
(C)
|
The
Committee's power is, however, restricted in that the change must not have
the effect of making the Performance Target or the additional Conditions
either materially easier or materially more difficult to achieve, in the
opinion of the Committee, than it was or they were immediately before the
circumstance in question.
|
(D)
|
Where the
Grantor exercises its power to waive the Performance Target or the
additional Conditions, the Grantor is not required to impose a replacement
Performance Target and/or replacement additional
Conditions.
|
(iii)
|
any event or
events as a result of which the Committee considers it fair and reasonable
to change or waive the Performance Target and/or the additional
Conditions.
|
(F)
|
In any case
where the Grantor is the Trustee, the Committee must tell the Trustee
before setting or changing or waiving the Performance Target or other
Conditions.
|
(A)
|
When a PSA
Award vests, the number of Shares or ADSs which are issued or transferred
to the Participant in satisfaction of the PSA Award will be increased in
accordance with Rule 3.5(B), to reflect the dividends paid by the Company
in the period from the Date of Grant to the Vesting
Date.
|
(B)
|
The number of
Shares or ADSs transferred to a Participant in accordance with Rule 8 of
Part B upon the vesting of a PSA Award will be increased by assuming that
the dividends that would have been paid on those Shares or ADSs which vest
(had the Participant been the owner of them) would have been reinvested in
accordance with the Company’s dividend reinvestment programme (if any) or
on such other basis as the Committee may
decide.
|
(A)
|
Except in
circumstances determined by the Committee to be exceptional, each PSA
Award must be limited and must therefore take effect, so that the total
Market Value of the Shares or ADSs, as the case may be, under a PSA Award,
in respect of each Participant does not exceed four times the individual’s
pay (see (B)) annually.
|
(ii)
|
third
anniversary of the Date of Grant or the date on which the Committee
determines that the Performance Target and any other Conditions imposed
under Rule 3.2(A) have been satisfied and that, in the opinion of the
Committee, the underlying performance of the Company is sufficient to
justify the vesting of a PSA Award in the case of Participants who hold
PSA Awards which are subject to a Performance Target and/or Conditions, if
later,
|
(B)
|
If the
Committee so determines on or prior to the Date of Grant, PSA Awards for
individuals who are not directors of the Company and who do not hold the
position of Executive Vice-President of the Company may vest on such other
date, or may vest in tranches on such other dates, as the Committee may
determine provided that the first vesting may not be earlier than the
first anniversary of the Date of Grant. Where a PSA Award vests in
tranches on more than one date, the Committee shall determine the
proportion of the PSA Award which vests on each such
date.
|
(A)
|
At any time
when the buying or selling of securities by a director or employee of the
Company would breach the Company’s code of practice on dealings in shares
and other securities, the vesting of a PSA Award may not
occur.
|
(ii)
|
in respect of
PSA Awards where there is no Performance Target or other Conditions, at
the date on which the Participant’s employment
ends.
|
(A)
|
If a
Participant dies holding an Unvested PSA Award, the PSA Award will become
a Vested PSA Award on the date of death and the number of Shares or ADSs
in respect of which the PSA Award may become a Vested PSA Award will be
reduced by the Service Factor, unless the Committee, in its absolute
discretion, determines
otherwise.
|
(i)
|
a general
offer to acquire the whole of the issued ordinary share capital of the
Company (which is made on a condition that if it is satisfied the person
making the offer will have Control of the Company);
or
|
(ii)
|
a general
offer to acquire all the shares in the Company which are of the same class
as the Shares,
|
(B)
|
In respect of
PSA Awards with a Performance Target and/or Conditions, unless the
Committee in its absolute discretion determines otherwise, the PSA Award
will only become a Vested PSA Award to the extent that the Committee
determines that the Performance Target and any other Conditions imposed
under Rule 3.2(A) of Part B have been satisfied on the basis that the
Performance Period is deemed to have ended on the date of the event
referred to in Rules 8.1 to 8.3. Any pro-rating required by Rule 8.5(A)
will apply to reduce the Vested PSA Award determined under this Rule
8.5(B).
|
(A)
|
In the
circumstances referred to in Rules 8.1 to 8.3, if a company obtains
Control of the Company, a Participant may, if the acquiring company so
agrees and within the Relevant Period, release his PSA Award (the old award) in
consideration of the grant to him of an award over shares in the acquiring
company or a member of the acquiring company’s group (the new
award).
|
(i)
|
in a case
falling within Rule 8.1, six months beginning 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;
|
(iii)
|
the Rules
will apply to the new award as if references to the Company (including any
such references as occur in expressions which are defined in Rule 1.1 and
are used in those Rules) were references to the company in respect of
whose shares the new award is
granted;
|
(i)
|
there occurs
an arrangement as a result of which the Company will be under the Control
of another company; and
|
(a)
|
the persons
who will own shares in the acquiring company immediately after the
arrangement will be substantially the same as the persons who own shares
in the Company immediately before the arrangement;
or
|
(C)
|
It is also
subject to obtaining such consents or approvals as may be required by any
competent authority under regulations or enactments for the time being in
force and, in the case of ADSs, to the provisions of the deposit
arrangement between the Company and the depositary bank for the Company’s
ADS programme. It is the responsibility of the Participant to obtain such
consents and approvals.
|
(D)
|
Any stamp
duty payable on the transfer of Shares under a PSA Award shall be paid by
the Company.
|
(B)
|
Where a PSA
Award has vested either the Company or the Trustee will sell on behalf of
the Participant sufficient of the Shares or ADSs which would otherwise be
issued or transferred to the Participant on that vesting so that the net
proceeds of sale equal the minimum payment which the employer or former
employer is required to pay to the appropriate authorities on behalf of
the Participant. Where such Shares or ADSs are sold by the Trustee, the
Trustee will account to the employer or former employer for the net
proceeds of sale. The Company will procure that an amount equal to those
net proceeds is remitted to the appropriate authorities on behalf of the
Participant.
|
(C)
|
Rule 9.2(B)
shall not apply, where it is not possible for the Company or the Trustee
to act in this way. In these circumstances, the Participant must make
alternative arrangements for the payment of an amount due on the vesting
of the PSA Award to the satisfaction of the Participant’s employer or
former employer.
|
(D)
|
The Company
or Trustee need not sell the Shares or ADSs referred to in Rule 9.2(B) in
whole or in part and may either not issue such Shares or may retain them
as assets of the Trust provided that an amount equal to the payment
required to be made to the appropriate authorities is made by the Company
or is accounted for by the Trustee to the employer or former employer,
derived from the other assets of the Company or the Trustee, as the case
may be.
|
(B)
|
If the
obligations of the Trustee so lapse, the Company shall procure that any
Shares or ADSs not so transferred by the Trustee to which the Participant
is entitled under the Rules (ignoring Rule 9.3(A)) (or an amount equal to
the proceeds of the sale of such number of Shares) are issued by the
Company or transferred to the relevant Participant, either by the Trustee
or by some other person, as soon as reasonably
practicable.
|
(B)
|
If a
Participant transfers, assigns, charges, encumbers or otherwise alienates
a PSA Award or creates in favour of any third party any interest therein
or, in any case, attempts so to do, or a bankruptcy order is made in
respect of the Participant (or any similar event occurs under the laws of
any other country), the PSA Award shall
lapse.
|
(B)
|
In particular
(but without limitation), if a Participant for any reason whatsoever
ceases to be employed by a member of the Group (whether or not such
cessation involves breach, or alleged breach, of contract by the Company)
or to be entitled to receive a PSA Award or Vested PSA Award, the
Participant is not entitled to any rights or benefits under the Plan save
as specifically provided elsewhere in these Rules and is not entitled to
any compensation by reference to the rights granted to, or the benefits
capable of being received by, the Participant under Part B of this Plan or
for any loss or diminution in value in such rights or
benefits.
|
2
|
Rule 12.2(B)
and (C) amended by resolution on 23 June 2008, pursuant to a resolution of
the Implementation Committee dated 15 April
2008.
|
(i)
|
subject to
Rule 13.3(B), no amendment may be made to the advantage of Eligible
Employees or Participants to any provision of the Rules without the prior
approval of the Company in general meeting;
and
|
(B)
|
Notwithstanding
the limitation contained in Rule 13.3(A), the Committee may without the
prior approval of the Company in general
meeting:
|
(vi)
|
no account
will be taken of Shares acquired by an employee or former employee (or the
personal representatives of such a person) where the Shares are acquired
for a price equal to their Market Value at or about the date of
acquisition and the cost of those Shares is borne by the employee or
former employee (or his
estate);
|
(viii)
|
any Shares
allocated to the trustee of any trust which were used to satisfy awards
granted under an employee share scheme must be treated as having been
allocated in respect of those awards unless the Shares were acquired by
the trustee pursuant to a rights issue or other opportunity offered to the
trustee in respect of Shares other than Shares previously allocated to
it.
|
(C)
|
All notices
and documents sent by post will be sent at the risk of the Eligible
Employee or Participant concerned. Neither the Company nor any of its
Subsidiaries nor the Trustee shall have any liability whatsoever to any
Eligible Employee or Participant in respect of any notice or document
sent, nor shall the Company or any of its Subsidiaries or the Trustee be
concerned to see that any Eligible Employee or Participant actually
receives it.
|
(a)
|
The
Performance Targets will be based on Non GAAP EBITDA and adjusted return
on invested capital (“ROIC”), as computed by
the Company, using information derived from the Company’s audited accounts
and adjusted to ensure a consistent and equitable basis of measurement, as
approved by the Remuneration Committee, including the add back of
significant one time items.
|
(b)
|
Where the
Performance Target is imposed the PSA Award will be split between a base
award (being one quarter of the total award made) and a performance award.
Multiples of the base award will vest at the end of the performance period
depending on the achievement of performance against the
matrix.
|
Adjusted
ROIC
|
EBITDA
growth (CAGR 2009-2012)
|
||||
Increase
bp p.a.
|
8%
|
10%
|
12%
|
14%
|
16%
|
10
|
1.0x
|
1.3x
|
1.7x
|
2.1x
|
2.5x
|
20
|
1.3x
|
1.6x
|
2.0x
|
2.4x
|
2.8x
|
40
|
1.6x
|
1.9x
|
2.4x
|
2.7x
|
3.1x
|
60
|
1.9x
|
2.3x
|
2.6x
|
3.1x
|
3.5x
|
80
|
2.2x
|
2.6x
|
3.1x
|
3.6x
|
4.0x
|
100
|
2.5x
|
3.0x
|
3.5x
|
4.0x
|
4.0x
|
1.
|
Notwithstanding
any other provisions of the Rules, any award made on or after 1 February
2008 under Part B of the Rules to any person who is in the year prior to
the Date of Grant resident for tax purposes in Canada (a “Canadian Participant”)
shall, if and to the extent it has not already vested or lapsed, vest on
December 20, of the second calendar year following the year in which the
Date of Grant occurred.
|
2.
|
Save as
provided above, the provisions of the Rules shall apply to awards made to
Canadian Participants.
|