EXHIBIT 10.10
DEED CONSTITUTING
THE MIH LIMITED SHARE TRUST
between
MIH Limited
and
Ernst & Young Trustees Limited
TABLE OF CONTENTS
1. PURPOSE................................................................ 3
2. DEFINITIONS AND INTERPRETATION......................................... 3
3. CREATION AND ADMINISTRATION OF THE TRUST............................... 9
4. APPOINTMENT OF TRUSTEES................................................ 10
5. POWERS OF TRUSTEES..................................................... 10
6. DUTIES OF TRUSTEES..................................................... 10
7. PRIVILEGES, EXEMPTIONS AND INDEMNITIES OF TRUSTEES..................... 11
8. FURNISHING OF SECURITY BY TRUSTEES.................................... 11
9. TERMINATION OF TRUST................................................... 11
10. ALLOCATION AND ALLOTMENT OF SHARES TO THE TRUST..................... 12
11. FINANCIAL ASSISTANCE................................................ 13
12. OFFER OF SHARES OR GRANT OF OPTIONS................................. 15
13. OFFERS.............................................................. 15
14. RIGHTS AND OBLIGATIONS UNTIL PURCHASE PRICE PAID.................... 16
15. PAYMENT OF PURCHASE PRICE........................................... 17
16. OBLIGATIONS OF BENEFICIARIES VIS-A-VIS TRUSTEES..................... 19
17. EFFECT OF PAYMENT OF FULL PURCHASE PRICE............................ 19
18. GRANT, EXERCISE AND LAPSE OF OPTIONS................................ 20
19. EFFECT OF SALE OF SCHEME SHARES..................................... 22
20. EFFECT OF CESSATION OF A BENEFICIARY'S EMPLOYMENT................... 23
21. CANCELLATION OF SALE BY REASON OF NON-PAYMENT....................... 24
22. CANCELLATION OF TRANSACTIONS AND REPURCHASE OF SCHEME SHARES........ 24
23. RIGHTS ISSUES....................................................... 25
24. CAPITALISATION ISSUES AND REDUCTIONS OF CAPITAL IN SPECIE........... 26
25. ADJUSTMENTS IN EVENT OF CERTAIN TRANSACTIONS AND LIQUIDATION
OF THE COMPANY .................................................. 27
26. TAKEOVER OF COMPANY................................................. 28
27. DISCLOSURE BY COMPANY IN ANNUAL FINANCIAL STATEMENTS................ 30
28. AMENDMENTS OF SCHEME................................................ 30
29. DISPUTES............................................................ 30
30. ADDRESSES........................................................... 30
31. ISSUES OF SHARES TO ANY PERSON...................................... 32
32. DETERMINATION OF MARKET VALUE OF SCHEME SHARES...................... 32
33. EMPLOYMENT RIGHTS................................................... 33
34. PROPER LAW.......................................................... 33
35. CHANGE OF PROPER LAW................................................ 33
36. ACTS OF THE COMPANY................................................. 34
37. DEEMING PROVISION................................................... 34
SCHEDULE..................................................................... 36
PART 1....................................................................... 36
PART II...................................................................... 38
PART III..................................................................... 43
PART IV...................................................................... 44
PART V....................................................................... 47
PART VI...................................................................... 48
PART VII..................................................................... 52
PART VIII.................................................................... 55
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This Deed is made on March 25, 1999 between
(1) MIH Limited, a company incorporated in the British Virgin Islands, of 3rd
Floor, Abbot Building, Main Street, Road Town, Tortola, British Virgin
Islands (the "Company"); and
(2) Ernst & Young Trustees Limited, a company incorporated in Jersey, of Le
Gallais Xxxxxxxx, 54 Bath Street, St Helier, Jersey, Channel Islands JE4
8YD (the "Original Trustee").
PART I - INTRODUCTION
1. PURPOSE
1.1. The Company currently conducts, through its direct and indirect
Subsidiaries, pay television, internet and related technology
businesses in Africa, the Middle East, Europe, South-East Asia and
North America.
1.2. This Scheme is intended to advance the interests of the Group and
its shareholders by attracting and retaining Employees who are
able to contribute to the successful management and growth of the
Group and to stimulate the personal involvement of these Employees
in the advancement of the Group, thereby encouraging their
continued service with the Group. Accordingly, the Trustees may,
from time to time, award Offers and Options to such Employees as
may be selected in the manner provided in this Scheme.
2. DEFINITIONS AND INTERPRETATION
In this Deed -
2.1. clause headings are inserted for convenience only and shall not be
taken into account in its construction;
2.2. unless the context clearly indicates a contrary intention, an
expression which denotes any one gender includes the other
genders, a natural person includes a juristic person and vice
versa, the singular includes the plural and vice versa and the
following expressions bear the meanings assigned to them
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below and cognate expressions bear corresponding meanings -
"Acquisition Price" - the price defined as such in
clause 19.1;
"the Act" - The International Business
Companies Ordinance No.8 of 1984 of
the British Virgin Islands and any
statutory amendment or re-enactment
thereof;
"Awards" - the awards, referred to in clause
1.2, which may be granted to
selected Employees in terms of this
Scheme;
"Bankers" - such international investment bank
as shall be appointed by the
Company as and when the bank is
required to perform any function
in terms of this Deed;
"Beneficiary" - any Employee who has accepted an
Offer or an Option, provided that
for so long as an Employee is a
resident of Jersey, he shall not be
eligible to become a Beneficiary in
terms of the Scheme;
"Capitalisation Issue" - the issue of Shares on a
capitalisation of the Company's
profits and/or reserves (including
its share premium account and
capital redemption reserve fund);
"Capitalisation Share" - a fully paid Share allotted, in a
Capitalisation Issue, in respect of
a Scheme Share and any further
fully paid Share similarly allotted
in respect of the Capitalisation
Share, during the time that the
Share to which it is linked in
terms of clause 24.2 is a Scheme
Share;
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"Deed" - this trust deed, including the
Schedule;
"Deed of Adherence" - an agreement between the Company,
the Trustees and a Subsidiary,
substantially in the form set out
in Part VIII of the Schedule, in
terms whereof such Subsidiary
agrees to be bound to the terms and
conditions of this Agreement to the
extent that it relates to
Subsidiaries;
"Discretion" - a sole, absolute and unfettered
discretion;
"Employee" - an employee (including an executive
director and a consultant) of the
Company or of a Subsidiary of the
Company which will have agreed to
be bound by the terms and
conditions of this Agreement by
executing a Deed of Adherence and,
unless the context clearly
indicates a contrary intention, the
term "Employee" also includes the
Employees' Trust, in relation to an
employee who is a beneficiary
thereunder, and "Employment" has a
corresponding meaning;
"Employees' Trust" - a discretionary trust or trusts
created by the Company or the
Trustees, the beneficiaries of
which shall be some or all of those
Employees (and their respective
spouses, dependants, descendants
and/or nominees) for whose benefit
the Trustees have made Offers or
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granted Options to the Employees'
Trust, which Offers or Options
could, in terms hereof, have been
made or granted directly to the
Employees concerned;
"Exercise Price" - the price defined as such in clause
18.1.1;
"Executor" - the person in any applicable
jurisdiction, who administers a
deceased person's estate;
"Group" - the Company and its Subsidiaries;
"Market Value" - the market value per Scheme Share
on a date as calculated in
accordance with the provisions set
out in clause 32;
"Offer" - an offer made under the Scheme
to an Employee to purchase Shares
from the Trust;
"Offer Date" - the date, stipulated as such in the
written notification (referred to
in clause 13.1) from the Trustees
to an Employee, being the date on
which an Offer is made (or, if such
date is earlier than the date of
such written notification, is
deemed to have been made) to such
Employee in terms of the Scheme;
"Option" - an option granted under the Scheme
to an Employee, which, when
exercised in respect of any Scheme
Shares to which the option relates,
will result in a sale of such
Scheme Shares by the Trust to the
Beneficiary;
"Option Date" - the date, stipulated as such in the
written notification (referred to
in clause 18.1.1) from the Trustees
to an Employee, being the date on
which an Option is granted (or, if
such date is earlier than the date
of such written notification, is
deemed to have been granted) to
such Employee in terms of the
Scheme;
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to an Employee;
"Purchase Price" - the price defined as such in clause
13.1;
"Put and Call Option" - an agreement between the Trustees
and a Beneficiary in the form (or
substantially in the form) set out
in Part VI of the Schedule (in
relation to Scheme Shares acquired
pursuant to an Offer) or Part VII
of the Schedule (in relation to
Scheme Shares acquired on the
exercise of an Option);
"Record Date" - the close of business on the date
the register of the Company will be
closed to determine entitlement to
participate in a Rights Issue,
Capitalisation Issue or a Reduction
of Capital, as the case may be;
"Reduction of Capital" - a reduction of the Company's share
capital, including a reduction of
the Company's share premium account
or capital redemption reserve fund;
"Reserved Share" - a Scheme Share which a Beneficiary
has undertaken to purchase, or has
purchased, from the Trustees in
terms of clause 13 or which a
Beneficiary has an Option to
purchase, in each case until such
Beneficiary has acquired ownership
and has paid the full Acquisition
Price of the Scheme Share;
"Rights Issue" - the offer of any securities of the
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Company or of any other body
corporate to all holders of Shares,
pro rata to their holdings at the
Record Date;
"Schedule" - the schedule to this Deed;
"Scheme" - the share incentive scheme set out
in this Deed, as it may be amended
from time to time in accordance
with the terms hereof;
"Scheme Share" - the Shares referred to in clause
10.1, including Capitalisation
Shares and Rights Issue Shares;
"SE" - any Stock Exchange on which Shares
are listed;
"Security Agreement" - the security agreement referred to
in Part III of the Schedule;
"Shares" - shares in the capital of the
Company, of whatever class;
"Statutes" - any applicable statutes, laws,
rules or regulations which have
force of law and which relate to or
affect the performance by the
Trustees of their duties and
functions under the Scheme;
"Subsidiary" - any company which is a subsidiary
of the Company within the meaning
of the Act, as well as any company
which the Trustees from time to
time declare, in their Discretion,
to be a subsidiary of the
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Company for the purposes of this
Deed and the Scheme;
"Trust" - the MIH Limited Share Trust
constituted in terms of this Deed;
"Trustees" - includes the Original Trustee and
any trustee(s) succeeding or
substituted for the Original
Trustee or any additional or
subsequent trustees at any time,
holding office as such in terms of
this Deed;
"Unreserved Share" - a Scheme Share which is not a
Reserved Share;
"Year" - the Company's financial year;
2.3. except where the context requires otherwise, references to
statutory provisions shall be construed as references to those
provisions as respectively amended or re-enacted or as the
application is modified by other provisions (whether before or
after the date hereof) from time to time.
PART II - CONSTITUTION OF THE TRUST
3. CREATION AND ADMINISTRATION OF THE TRUST
3.1. The MIH Limited Share Trust is hereby constituted as a trust under
the laws of the Island of Jersey, which trust shall be implemented
and administered by the Trustees for the purposes and in the
manner set out herein.
3.2. The Trustees shall, subject to the provisions of this Deed, be
entitled to establish such rules and regulations as they, in their
Discretion, deem necessary for the proper administration of the
Scheme and to make such determinations and interpretations and to
take such ancillary steps in
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connection therewith as they deem necessary or desirable. Without
limiting the generality of the aforegoing, the Trustees shall have
the authority, inter alia, to select, after having received a
recommendation from the Company to that effect, Employees to
participate in the Scheme, to determine the Awards to be granted
to an Employee, to grant Awards singly, in combination, or in
tandem, and to do all things and to take such actions as may be
necessary for the proper operation of the Scheme in accordance
with the provisions hereof.
3.3. As between the Trustees, on the one hand, and the Company and the
Beneficiaries respectively, on the other hand, the determinations
of the Trustees in the implementation and administration of the
Scheme shall be final and conclusive.
3.4. The Trustees may delegate to one or more persons or committees
some or all of the powers exercisable by them in terms of this
Deed on such terms and for such periods as they deem fit, and may
revoke any appointment and vary the terms of any delegation.
4. APPOINTMENT OF TRUSTEES
4.1. The Original Trustee is appointed as trustee of the Trust and it does, by
its signature of this Deed, accept such appointment.
4.2. The provisions of Part I of the Schedule shall apply to the cessation of
office and succession of Trustees.
5. POWERS OF TRUSTEES
5.1. The Trustees shall have the powers set out in Part II of the
Schedule.
5.2. A Trustee may not be or become a Beneficiary.
6. DUTIES OF TRUSTEES
The Trustees shall have the duties set out in Part III of the Schedule.
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7. PRIVILEGES, EXEMPTIONS AND INDEMNITIES OF TRUSTEES
A Trustee shall enjoy the privileges, exemptions and indemnities set out
in Part IV of the Schedule.
8. FURNISHING OF SECURITY BY TRUSTEES
If, for any reason, a Trustee is at any time required to furnish security
for his duties, the costs from time to time of doing so shall be
recoverable from the Trust.
9. TERMINATION OF TRUST
9.1. The Scheme shall terminate and wind up in accordance with clauses
9.2 and 9.3 on the first to occur of the following -
9.1.1. the Trustees determining that the Scheme is insolvent or
receiving advice to that effect and the Trustees thereupon
deciding to terminate and wind up the Scheme; or
9.1.2. the Company directing the Trustees that the Scheme be wound
up; or
9.1.3. the Company being dissolved or ceasing to carry on business
(unless its successor or successors in business shall take
the place of the Company for all the purposes of the
Scheme); or
9.1.4. the one hundredth anniversary hereof.
Upon such termination, the Trustees shall notify each Beneficiary
thereof in writing.
9.2. Upon termination, the Trustees shall realise the assets of the
Trust, wind up the affairs of the Trust and pay over to the
Company any surplus funds (after discharging all liabilities)
remaining in the Trust.
9.3. Should the amount paid by the Trustees to the Company in terms of
clause 9.2 fall short of the full indebtedness of the Trust to the
Company and its Subsidiaries, the Trustees shall be relieved of
all liability for such shortfall, which shall constitute a loss to
be borne by the Company and the Subsidiaries in such proportions
as the Company in its Discretion determines to be
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equitable.
9.4. When the Trustees have disposed of all the assets of the Trust in
accordance with this Deed, the Scheme shall be terminated and the
Trustees shall be discharged from the trusts thereof without the
necessity of written discharges or resignations.
PART III - COVENANTS BY COMPANY AND SUBSIDIARIES
10. ALLOCATION AND ALLOTMENT OF SHARES TO THE TRUST
10.1. The shares subject to the Scheme shall be Class "A" ordinary
Shares. The Company shall, as and when the Trustees make an Offer
to an Employee or an Employee exercises an Option, in respect of a
particular number of Shares, allot and issue to the Trustees, for
the purpose of the Scheme, the same number of Shares at a price
which is equal to the Acquisition Price payable by the Employee
for such Shares, provided that such Shares, when added to the
number of Scheme Shares then issued hereunder, shall not, at any
time, represent more than 10% (ten per cent) of the total issued
share capital of the Company from time to time.
10.2. Notwithstanding the provisions of clause 10.1, the Trustees may,
in any case, arrange for the direct allotment and issue of Scheme
Shares to a Beneficiary who has accepted an Offer or exercised an
Option.
10.3. The Shares referred to in clauses 10.1 and 10.2 shall be allotted
and issued subject to the provisions of this Deed and each such
allotment shall, without limiting the generality of the
aforegoing, be upon the basis that -
10.3.1. the Shares will upon acquisition by the Trustees
(pursuant to clause 10.1) or the Beneficiaries (pursuant
to clause 10.2) become Scheme Shares;
10.3.2. Scheme Shares may only be disposed of in terms of this
Deed; and
10.3.3. Scheme Shares and any Capitalisation Shares linked
thereto (whether
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subject to an Offer or an Option or not) shall
participate in money or assets distributed in a Reduction
of Capital, Capitalisation Issue or Rights Issue and in
all dividends declared from time to time by the Company.
10.4. Whenever the Trustees acquire any Shares other than in terms of
clause 10.1, the Company shall treat the acquisition as if it were
made in terms of such clause and the provisions of clause 10.3
shall apply to all Shares so acquired.
11. FINANCIAL ASSISTANCE
11.1. Upon every issue of Shares in terms of clause 10, and whenever the
Trustees propose to acquire any other Shares for the purpose of
the Scheme (including Shares acquired in terms of a Rights Issue),
an amount equal to the total consideration payable on account of
those Shares shall be lent and advanced to the Trustees, in terms
of the further provisions hereof, as and when the Trustees become
obliged to pay the consideration, except to the extent that the
Trustees have funds available for this purpose.
11.2. The person to lend and advance monies to the Trustees in terms of
clause 11.1 shall be -
11.2.1. the Company, insofar as those Shares are offered or any
Option is granted in respect thereof, to Employees of the
Company or, in relation to those Employees, to the
Employees' Trust, or
11.2.2. a Subsidiary of the Company, insofar as those Shares are
offered or any Option is granted in respect thereof, to
Employees of that Subsidiary or, in relation to those
Employees, to the Employees' Trust,
provided that until it is determined to whom, or for whose
benefit, the Shares will be offered or an Option in respect
thereof will be granted, the Company shall lend and advance the
monies required for those Shares and if any Shares are thereafter
offered to an Employee of a Subsidiary (or, in relation to that
Employee, to the Employees' Trust), or an Option is granted in
respect thereof to such Employee (or, in relation to such
Employee, to the
13
Employees' Trust), that Subsidiary shall advance the monies
concerned to the Trustees who shall use those monies to repay, pro
tanto, their indebtedness to the Company.
11.3. The Company and/or the Subsidiaries falling within the ambit of
clause 11.2.2 shall lend and advance to the Trustees, as and when
required by them, monies for the proper execution of their duties
as such, including, without derogating from the generality of the
aforegoing -
11.3.1. for payment of any disbursements and expenditure incurred
by them in their capacity as Trustees;
11.3.2. for payment of amounts due in terms of clause 8;
11.3.3. for payment of any amount in respect of which they have
been lawfully indemnified pursuant to the terms of clause
7;
11.3.4. for lending to a Beneficiary the amount of any income or
other tax or the amount required to subscribe for Rights
Issue Shares pursuant to clauses 15.2 and 19.3.2
respectively; and
11.3.5. for payment of the purchase price of Scheme Shares
acquired pursuant to the provisions of clause 26.2,
paragraph 4 of Part V of the Schedule or the Put and Call
Option respectively.
11.4. Loans to the Trustees in terms of clauses 12.1, 12.2 and 12.3
shall -
11.4.1. bear interest at such rate as may be agreed between the
lender concerned and the Trustees, from time to time; and
11.4.2. be repaid from amounts received by the Trustees in terms
of clause 17 or clause 18 which are surplus, after
discharging all liabilities then due, to the Trust's
requirements for the ensuing period of 6 (six) months.
PART IV - PARTICIPATION BY EMPLOYEES
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12. OFFER OF SHARES OR GRANT OF OPTIONS
12.1. The Trustees may from time to time, in accordance with clauses
13.1 and 18.1, (and in accordance, furthermore, with any
recommendations from the Company in that regard and after
consultation with the Employees concerned) make Offers of or grant
Options in respect of Shares to named Employees, or, in relation
to such Employees, to the Employees' Trust.
12.2. The Trustees may not, pursuant to the Scheme, grant to, or for the
benefit of, any one Employee Awards in respect of which the
aggregate number of Scheme Shares exceeds one (1)% of the
Company's total issued share capital at that time.
12.3. An Offer or Option shall be personal to and be capable of
acceptance only by the Employee to whom it is addressed; provided
that the Trustees may, in their Discretion and subject to such
terms and conditions as they may impose, permit the assignment of
any rights under any Offer or Option (including, without
limitation, rights arising pursuant to the acceptance or exercise,
as the case may be, by the Employee) to the trustee(s) of any
trust; provided further, however, that, notwithstanding any such
assignment, the Employee in question (or, in the case of such
Employee's death, his Executor) shall remain liable for all
obligations of a Beneficiary hereunder and shall be the only
person recognised by the Trustees as being entitled to enforce any
of a Beneficiary's rights, in terms of the Scheme.
13. OFFERS
13.1. Every Offer made to an Employee under this Scheme shall be made in
writing by the Trustees to the Employee, and shall specify, inter
alia, the name of the Employee to whom, or for whose benefit, the
Offer is made, the Offer Date, the number of Scheme Shares offered
and the Market Value of the Scheme Shares to which the Offer
relates on the Offer Date ("Purchase Price").
13.2. An Offer shall be accepted in writing, in such form as the
Trustees may
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stipulate, and be delivered to the Trustees within 14 (fourteen)
days after the date of the written notification in terms of clause
13.1, failing which it shall lapse.
13.3. Any acceptance of an Offer shall -
13.3.1. specify the number of Shares in respect of which an Offer
is accepted, which shall be the whole or a lesser number
of the number of Scheme Shares to which the Offer
relates;
13.3.2. specify an address for the purpose of clause 30;
13.3.3. be accompanied by a duly executed Security Agreement and
also by a duly executed Put and Call Option, in
each case in respect of the Scheme Shares specified in
accordance with clause 13.3.1;
13.3.4. otherwise be subject to and governed by the provisions of
this Deed.
14. RIGHTS AND OBLIGATIONS UNTIL PURCHASE PRICE PAID
Until the full Purchase Price of any Scheme Shares has been paid to the
Trustees -
14.1. all such Scheme Shares and all Capitalisation Shares linked
thereto shall be registered as provided in clause 2 of Part III of
the Schedule. If, however, the Trustees will have transferred the
Scheme Shares to the Beneficiary (by registration in the name of
the Beneficiary) on or after acceptance of the Offer (but before
payment of the full Purchase Price), then ownership of the Scheme
Shares and all Capitalisation Shares linked thereto shall, subject
to the provisions of the Security Agreement executed by such
Beneficiary, vest in such Beneficiary; provided that the Trustees
and a Beneficiary may agree that, instead of adopting the
aforesaid procedure, registration of transfer of the Scheme Shares
to the Beneficiary shall not take place on acceptance of the Offer
but only against payment of the full Purchase Price and that, on
such registration of transfer, ownership of the Scheme Shares and
all Capitalisation Shares linked thereto shall, subject to the
provisions of the Security Agreement, vest in the Beneficiary;
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14.2. a Beneficiary shall, after having taken transfer of such Scheme
Shares, be entitled, subject to clause 15.4, to dividends declared
and to Capitalisation Issues and Rights Issues in respect thereof
and money or assets distributed pursuant to a Reduction of
Capital;
14.3. subject to clause 14.2, those Scheme Shares and all Capitalisation
Shares linked thereto may not be sold or transferred by a
Beneficiary (other than to the Trustees in the manner and on the
basis as is expressly provided in clauses 22 or 26 or, if
applicable, in terms of the Put and Call Option) or, subject to
the provisions of the Security Agreement, in any way be mortgaged,
pledged or otherwise encumbered, unless the Trustees have given
their prior written consent thereto;
14.4. any sale resulting from the acceptance of an Offer or the exercise
of an Option may be cancelled in terms of clauses 20, 21 and 22;
14.5. the voting rights attaching to all Scheme Shares sold to
Beneficiaries in terms of this Scheme and all Capitalisation and
Rights Shares linked thereto shall, at all times until such Shares
are transferred to the Beneficiaries, be exercisable by the
Trustees;
14.6. on a winding-up of the Company, any proceeds payable to the holder
of Scheme Shares shall be applied firstly in discharging any
amount due by such Beneficiary to the Trustees.
15. PAYMENT OF PURCHASE PRICE
15.1. Unless the Trustees in their Discretion decide otherwise, the
outstanding Purchase Price due on any Scheme Share which has been
transferred to a Beneficiary shall bear interest in an amount
equal to the dividends (if any) paid on such Share.
15.2. If a Beneficiary who has taken transfer of his Scheme Shares
becomes liable for any income or other tax by reason of his not
being obliged to pay interest on the outstanding portion of the
Purchase Price at all, or being obliged to pay only a low rate of
interest, the Trustees may, in their Discretion, lend the
Beneficiary the amount by which that income or other tax (as
determined by
17
them) exceeds any dividends received by him in respect of his Scheme
Shares during that year and the amount so lent shall be deemed to form
part of the outstanding balance of the Purchase Price payable by the
Beneficiary for his Scheme Shares.
15.3. To the extent that the dividends (if any) payable to a Beneficiary
in respect of his Scheme Shares in any year exceed any taxation
payable by him as contemplated in clause 15.2, such dividends
shall be retained by the Trustees and be paid towards the
reduction of interest accrued and the outstanding balance of the
Purchase Price of the Beneficiary's Scheme Shares. The same
provision shall apply to any money received pursuant to a
Reduction of Capital.
15.4. The Purchase Price of any Scheme Shares purchased pursuant to an
acceptance of an Offer may be paid at any time after the Offer
Date, provided that -
15.4.1. such payment may not be effected before the lapse of the
following respective periods (calculated from the Offer
Date):
15.4.1.1. 3 (three) years, and then only in respect of up
to one-third of the total number of such Scheme
Shares;
15.4.1.2. 4 (four) years, and then only in respect of up
to two-thirds of the total number of such
Scheme Shares; and
15.4.1.3. 5 (five) years in respect of more than two
thirds of such Scheme Shares,
unless the Trustees, in their Discretion, allow
earlier payment;
15.4.2. the whole of the Purchase Price of the Scheme Shares
(together with any amount lent to a Beneficiary pursuant
to clause 15.2) shall be paid to the Trustees not later
than 5 (five) years and 105 (one hundred and five) days
after the Offer Date.
The Trustees may not apply any payments made on account of the
Purchase Price nor any amounts received pursuant to the provisions
of clause 15.2
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rateably towards payment of the Purchase Price of all Scheme
Shares but shall, instead, appropriate all such payments and
amounts towards the discharge in full of the debt owed by a
Beneficiary in respect of each of the Scheme Shares.
15.5. Subject to clause 15.4.1, a Beneficiary may pay the outstanding
balance of the Purchase Price, or any portion thereof, before the
due date for payment.
15.6. Notwithstanding anything to the contrary herein contained (except
for clause 20), on cessation of a Beneficiary's employment by the
Group (the date of such cessation being the "Termination Date")
the balance of the Purchase Price (together with any amount lent
to a Beneficiary pursuant to clause 15.2) owing by that
Beneficiary for any Scheme Shares acquired by him in terms of the
Scheme shall, except to the extent that the Trustees otherwise
decide, become due and payable, if cessation of employment was due
to death or ill-health, 6 (six) months after the Termination Date,
but otherwise on the Termination Date.
16. OBLIGATIONS OF BENEFICIARIES VIS-A-VIS TRUSTEES
Every Beneficiary shall, in addition to and without prejudice to any
obligation imposed elsewhere in this Deed, whether express or implied -
16.1. ensure that payment of the Purchase Price owing in respect of any
Scheme Shares is punctually made on the due date; and
16.2. at all times strictly observe the provisions of this Deed.
17. EFFECT OF PAYMENT OF FULL PURCHASE PRICE
Upon a Beneficiary paying the Purchase Price of each Scheme Share
purchased by him in full -
17.1. such Scheme Share and all Capitalisation Shares linked thereto
shall cease to be Scheme Shares and any burdens attaching to any
such Shares in terms of this Deed shall cease to operate, but such
Shares shall be subject to the pre-emption provisions set out in
Part V (and, if applicable, the provisions set out in the Put and
Call Options in Part VI) of the Schedule;
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17.2. the Trustees shall, if this has not been done before, forthwith
cause such Share to be transferred to the Beneficiary (that is,
registered in the name of the Beneficiary) against payment of the
stamp and/or transfer duty, if any, payable in respect of the
transfer thereof;
17.3. the Company shall forthwith, if the Shares of the Company are then
listed on a SE, apply for a listing of such Share if, for any
reason, a listing in respect thereof will not already have been
granted.
18. GRANT, EXERCISE AND LAPSE OF OPTIONS
18.1. An Option granted to, or for the benefit of, an Employee under
this Scheme -
18.1.1. shall be offered in writing by the Trustees to the
Employee (or, to the Employees' Trust, for the benefit of
the Employee) in the form prescribed by the Trustees in
their Discretion. Such award shall specify, inter alia,
the number of Scheme Shares to which the Option relates,
the Option Date and the price at which the Option may be
exercised, which shall be the Market Value of the Scheme
Shares to which the Option relates on the Option Date
("Exercise Price");
18.1.2. shall be accepted in writing, in such form as the
Trustees may stipulate, and be delivered to the Trustees
within 14 (fourteen) days after the date of the written
notification referred to in clause 18.1.1, failing which
it shall lapse. The acceptance shall specify an address
for the purpose of clause 31;
18.1.3. may be accepted in respect of the whole or any such
lesser number of the number of Scheme Shares to which the
Option relates, as the Employee may elect;
18.1.4. shall, on acceptance, be accompanied by a duly executed
Security Agreement and also by a duly executed Put and
Call Option.
18.2. A Beneficiary shall exercise an Option by written notice to the
Trustees specifying the exercise date as well as the number of
Scheme Shares in
20
respect of which the Option is being exercised. An Option may be
exercised at any time after it has been granted and may be
exercised from time to time in respect of all or any of the Scheme
Shares to which the Option relates, but not after it has lapsed in
terms of clause 18.3. When an Option is exercised, the Trustees
and the Beneficiary may agree that the resulting contract be
implemented in the manner provided for in the proviso to clause
14.1, ie. that the Scheme Shares are not registered in the name of
the Beneficiary on exercise of the Option, but that such
registration occurs only when the Exercise Price thereof has been
paid in full. Notwithstanding the date upon which an Option is
exercised, in whole or part, the implementation of the resulting
contract (involving the payment of the Exercise Price against
registration of transfer of the Scheme Shares in the name of the
Beneficiary) may not take place -
18.2.1. in respect of any Scheme Shares until the third
anniversary of the Option Date;
18.2.2. between the third and fourth anniversaries of the Option
Date, in respect of more than one-third of the total
number of Scheme Shares subject to the Option;
18.2.3. between the fourth and fifth anniversaries of the Option
Date, in respect of such number of Scheme Shares as
constitutes, together with any Scheme Shares in respect
of which the Option was exercised and the resulting
contract has been implemented in terms of clause 18.2.2,
more than two-thirds of the total number of Scheme Shares
subject to the Option; and
18.2.4. in respect of any balance of the total number of Scheme
Shares subject to the Option, until after the fifth
anniversary of the Option Date,
unless the Trustees, in their Discretion, allow earlier
implementation.
18.3. An Option shall lapse -
18.3.1. to the extent that it is not exercised before the expiry
of 5 (five) years
21
and 105 (one hundred and five) days from the Option Date;
or
18.3.2. if the Beneficiary ceases to be an Employee for any
reason other than his death, retirement through
ill-health, disability, retrenchment or redundancy or
having reached the Group's normal retirement age or for
any other reason that the Trustees in their Discretion
consider valid; or
18.3.3. if the interest of a Beneficiary in an Option is attached
under any circumstances and the Trustees pass a
resolution to that effect; or
18.3.4. in accordance with clause 18.4.
18.4. If, while any portion of a Beneficiary's Option remains
unexercised, he ceases to be an Employee by reason of his death,
retirement through ill health, disability, redundancy,
retrenchment or having reached the normal Group retirement age or
for any other reason that the Trustees, in their Discretion
consider valid (so that his Option does not lapse in terms of
clause 18.3.2), the Beneficiary or the Executor of his estate, as
the case may be, may within 60 (sixty) days of the termination
date exercise any unexercised portion of the Option. Such exercise
shall be accompanied by payment of the Exercise Price of the
Scheme Shares subject thereto and upon such payment being received
by the Trustees, the Scheme Shares in question shall be delivered
and released to the Beneficiary or his Executor, as the case may
be. To the extent that the Option is not then exercised it shall
lapse.
19. EFFECT OF SALE OF SCHEME SHARES
19.1. For the purposes of this Deed, a sale in respect of any Scheme
Shares sold to a Beneficiary arising from the exercise of an
Option or the acceptance of an Offer shall be implemented by the
registration of transfer by the Trustees of the Scheme Shares in
the name of the Beneficiary and the payment by the Beneficiary to
the Trustees of the Purchase Price or Exercise Price, as the case
may be (collectively, the "Acquisition Price").
19.2. On implementation of a sale as set out in clause 19.1, the risk in
and benefit
22
to the Scheme Shares shall, subject to clause 19.3, pass to the
Beneficiary.
19.3. If, after exercise of an Option or acceptance of an Offer, but
before the implementation of the sale arising from such exercise
or acceptance, there should occur -
19.3.1. a Capitalisation Issue or a Reduction of Capital pursuant
to which assets are distributed to shareholders, a
Beneficiary shall, in respect of the Scheme Shares
purchased by him, participate therein; and
19.3.2. a Rights Issue, the Beneficiary shall, by written notice
to the Trustees, be entitled to participate therein in
respect of the Scheme Shares purchased by him and in such
event the Beneficiary shall pay the relevant amount in
terms of such Rights Issue, which amount the Trustees
shall, if so requested by the Beneficiary, lend him on
such terms as they, in their Discretion, determine.
20. EFFECT OF CESSATION OF A BENEFICIARY'S EMPLOYMENT
20.1. If a Beneficiary's Employment ceases by reason of his lawful
dismissal by the company in the Group which employs him on the
grounds of misconduct, or by reason of his resignation or notice
given by him, any sale of Scheme Shares to him arising from the
acceptance of an Offer or the exercise of an Option, shall, unless
the Trustees in their Discretion decide otherwise and to the
extent that such sale has not been implemented, be cancelled and
the Beneficiary shall have no further rights hereunder. In such
event, all amounts, other than interest, actually paid by a
Beneficiary for Scheme Shares in respect of which the sale has not
been implemented by the registration of transfer in the name of
the Beneficiary of the Scheme Shares in question against payment
thereof in full, shall be refunded to the Beneficiary. Where any
Scheme Shares have been transferred to a Beneficiary without the
Purchase Price thereof having been paid in full, such Shares shall
immediately be retransferred to the Trustees and to the extent
necessary such Beneficiary irrevocably authorises and empowers the
Trustees to complete any instrument of share transfer or other
document which may require completion in order to implement such
re-transfer.
23
20.2. The provisions of clauses 15.6, 18.3.2, 18.4 and 20.1 of this Deed
and 6.1 of each Put and Call Option shall apply, mutatis mutandis,
to the Employees' Trust in respect of Scheme Shares, Options,
Offers and other rights to Shares held by the Employees' Trust for
the benefit of an Employee whose Employment ceases.
21. CANCELLATION OF SALE BY REASON OF NON-PAYMENT
21.1. If any Acquisition Price (or any portion thereof) is not paid by
the due date therefor, the Trustees shall be entitled to cancel
the sale in terms of which those Scheme Shares were acquired by
that Beneficiary and, thereupon - 21.1.1. the Beneficiary shall
cease to have any interest in such Scheme Shares and in all
Capitalisation Shares linked thereto;
21.1.2. those Scheme Shares shall once again become Unreserved
Shares and the Capitalisation Shares shall cease to be
linked thereto and shall thereupon also become Unreserved
Shares; and
21.1.3. the Beneficiary shall be liable to the Trustees for all
damages suffered in consequence thereof.
21.2. Should the Beneficiary fail and/or refuse to comply with his
obligations under clause 21.1, the Trustees are empowered and
authorised (and the Beneficiary, by accepting an Offer or being
granted an Option, similarly authorises the Trustees) to do all
such things and sign all or any documents on behalf of that
Beneficiary as may be necessary to give effect to the provisions
of this Deed.
21.3. The provisions of clause 21.2 shall, mutatis mutandis, apply in
any other circumstances in which a Beneficiary or the Executor of
his estate fails to make any payment to the Trustees when due, but
without prejudice to any other rights which the Trustees may enjoy
under this Deed or the laws of Jersey.
22. CANCELLATION OF TRANSACTIONS AND REPURCHASE OF SCHEME SHARES
24
The Trustees may, if they in their Discretion consider that the
circumstances warrant such action and the Beneficiary agrees thereto -
22.1. cancel any purchase of Scheme Shares resulting from the exercise
by that Beneficiary of an Option or the acceptance by him of an
Offer to the extent that the purchase of such Scheme Shares has
not been implemented; and
22.2. repurchase from that Beneficiary any Scheme Shares acquired by him
in terms of the Scheme at a price not exceeding the Acquisition
Price of such Scheme Shares,
and where a transaction is so cancelled as aforesaid, the Trustees shall
refund to the Beneficiary all amounts (other than interest) paid by him
on account of the Acquisition Price of those Shares.
23. RIGHTS ISSUES
A Beneficiary shall be entitled to participate in any Rights Issue in
respect of his Reserved Shares (including those which are the subject
matter of an Option) and all Capitalisation Shares linked thereto, as if
the Acquisition Price of those Scheme Shares was at the Record Date
already paid in full. The provisions of this Deed shall apply, mutatis
mutandis, to such Rights Issue Shares as if they were Scheme Shares.
Until payment in full of the Acquisition Price of the Scheme Shares to
which such Rights Issue or Capitalisation Shares attach and of the price
of the Rights Issue Shares, such Rights Issue or Capitalisation Shares
shall be deemed to be Scheme Shares and shall also be subject to the
pre-emption provisions referred to in Part V of the Schedule, the Put and
Call Option (if applicable) and to the provisions of the Security
Agreement executed by such Beneficiary. If a Beneficiary elects not to
participate in any Rights Issue, any letter of allocation arising from
the Rights Issue may, if the Trustees so decide, be sold for the
Beneficiary's benefit or acquired by the Trustees for a price equal to
the Market Value of the rights on the day preceding the date of purchase
(which shall be determined, in their discretion, by the Trustees or, if
they so elect, by the Bankers) and the net proceeds, if any, of the sale
shall be applied to reduce the Acquisition Price owing, or which may
become owing, by the Beneficiary, provided that if the Beneficiary does
not purchase (and implement the purchase of) the Scheme Shares in
question, the amount so paid to the Trustees shall
25
be forfeited to it.
24. CAPITALISATION ISSUES AND REDUCTIONS OF CAPITAL IN SPECIE
24.1. Subject to clauses 24.2 and 25, a Beneficiary shall participate in
any Capitalisation Issue in respect of his Reserved Shares and all
Capitalisation Shares linked thereto, as if the Acquisition Price
of those Scheme Shares was, at the Record Date, already paid in
full.
24.2. No Beneficiary shall, in respect of any Scheme Shares for which
the Acquisition Price has not been paid in full, be entitled to
renounce his rights to any Capitalisation Shares issued in respect
of those Scheme Shares or dispose thereof in any other way, and
all such Capitalisation Shares shall -
24.2.1. be allotted and issued subject to the restrictions and
provisions of this Deed; and
24.2.2. for so long as the Purchase Price of the Scheme Shares in
respect of which they are issued is not paid in full or
for so long as the Option for the Scheme Shares in
respect of which they are issued has not been exercised
and/or the Exercise Price of the Scheme Shares in respect
of which they are issued has not been paid in full, be
linked to the relevant Scheme Shares and shall, mutatis
mutandis, be subject in all respects to the same
restrictions and provisions as are attached to the Scheme
Shares.
24.3. If, on the Record Date of a Capitalisation Issue, the Trustees
hold any Unreserved Shares, they shall, for purposes of the
Scheme, participate in Capitalisation Issues in respect of the
Unreserved Shares and any Capitalisation Shares accruing to the
Trust shall, upon allotment and issue, become Scheme Shares.
24.4. The provisions of clauses 24.2.2 and 24.3 of this Deed shall
apply, mutatis mutandis, to any Shares or other assets received in
respect of Scheme Shares on a Reduction of Capital.
26
PART V - GENERAL
25. ADJUSTMENTS IN EVENT OF CERTAIN TRANSACTIONS AND LIQUIDATION OF THE
COMPANY
25.1. In the event of the Company splitting or consolidating its Shares,
reorganising its share capital or making any distribution to
shareholders other than cash dividends, the Trustees may, in their
Discretion, make an adjustment to the number of Scheme Shares
subject to Awards then outstanding, to any Purchase or Exercise
Prices relating to Awards and to any other provisions relating to
Awards affected by such change, provided that the Bankers (acting
as experts, not as arbitrators) shall have confirmed in writing
that in their opinion such adjustment is fair and reasonable. The
Trustees may also make adjustments to take into account material
changes in law or in accounting practices or principles, mergers,
consolidations, schemes of arrangement, reconstructions,
acquisitions, dispositions, repurchases or similar corporate
transactions or any other event, if it is determined by the
Trustees that adjustments are appropriate to avoid distortion in
the operation of this Scheme, but no such adjustments other than
those required by law may (without the Beneficiary's consent)
adversely affect the rights of any Beneficiary under any Award
previously granted.
25.2. If the Company is placed in liquidation in circumstances other
than as contemplated by clause 25.1 -
25.2.1. the full amount owing in respect of a sale of Scheme
Shares by each Beneficiary shall forthwith become due and
payable, provided that the Trustees may, in their
Discretion, release a Beneficiary from any balance owing
by him to the Trustees;
25.2.2. save as provided in clause 25.2.1 and for any rights to
claim any payment which the Trustees may then have
against the Company, the Trustees may resolve to
terminate this Scheme as from the Date of Liquidation;
and
27
25.2.3. any Option which has not yet been exercised shall ipso
facto lapse from the date of liquidation.
For the purposes hereof "Date of Liquidation" means the date upon
which any application or petition (whether provisional or final)
for the liquidation or winding up of the Company was lodged at
court.
26. TAKEOVER OF COMPANY
26.1. Should direct or indirect Control of the Company pass to a person
or to 2 (two) or more persons acting in concert in whom Control
did not vest before, then the Trustees shall within fourteen (14)
days after such change of Control has become binding -
26.1.1. resolve in their Discretion whether or not this Scheme
shall continue in force; and
26.1.2. advise the Beneficiaries of their decision in this
regard.
For the purpose of this clause 26 "Control" means beneficial
ownership of more than 50% (fifty percent) of the combined voting
power of the issued voting securities of the Company. It shall be
in the Discretion of the Trustees to determine whether or not any
form of reconstruction or amalgamation of the Company in terms of
the laws applicable to it amounts to a change of control as
envisaged in this clause 26.
26.2. Notwithstanding anything to the contrary contained in this Scheme
or in the terms upon which an Award was made to a Beneficiary, a
Beneficiary shall, in the event of the Trustees resolving in terms
of clause 26.1 that the Scheme shall not continue in force, be
entitled to exercise all Options granted to him under this Scheme
and to implement any sale resulting from any Offer made or Option
exercised, within 30 (thirty) days after the date upon which the
Trustees resolved to discontinue the Scheme and shall then sell to
the Trustees (who shall buy) all Scheme Shares owned by him
(including any Scheme Shares acquired by him under an Offer) -
26.2.1. if the person who acquired Control of the Company is an
associated undertaking (as defined in clause 26.4),
either on the terms and
28
conditions of the transaction pursuant to which the
change of Control occurs in respect of the Company or for
the Market Value of each Scheme Share on the date of such
change, whichever is more favourable to a Beneficiary;
26.2.2. in any circumstances other than that referred to in
clause 26.2.1, on the terms and conditions of the
transaction pursuant to which the change of Control
occurs in respect of the Company,
and to the extent necessary such a Beneficiary
irrevocably authorises and empowers the Trustees to
complete any instrument of share transfer or other
document which may require completion in order to
implement any such purchase and sale.
26.3. The purchase price of the Scheme Shares purchased by the Trustees
pursuant to clause 26.2 shall be paid -
26.3.1. if a Beneficiary has any indebtedness outstanding to the
Trust in respect of any of his Scheme Shares, pro tanto,
to the Trust. If the amount of such outstanding
indebtedness exceeds the amount of the purchase price,
payment to the Trust of the whole of the purchase price
shall operate as a complete discharge of the
Beneficiary's obligations to the Trust under the Scheme;
26.3.2. as to the balance, if any, to the Beneficiary in
question.
26.4. For the purposes of clause 26.2 an "associated undertaking"
means -
26.4.1. an undertaking in which any person who directly or
indirectly beneficially owns 25% (twenty-five percent) or
more of the combined voting power of the issued voting
securities of the Company ("an owner"), directly or
indirectly-
26.4.1.1. owns more than 50% (fifty percent) of the
combined voting power of the issued voting
securities thereof; or
26.4.1.2. has the power to appoint more than half of the
members of the board thereof; or
29
26.4.1.3. has the right to manage the affairs thereof;
26.4.2. an undertaking which directly or indirectly has in or
over an owner the rights or powers listed in clause
26.4.1.
26.5. To the extent that a Beneficiary fails to exercise an Option or
complete a sale as set out in clause 26.2, the right to do so
shall lapse.
26.6. If the Trustees resolve in terms of clause 26.1 that the Scheme
shall continue in force then a Beneficiary shall remain subject to
all the terms and conditions of this Scheme, including, if
applicable, the Put and Call Option.
27. DISCLOSURE BY COMPANY IN ANNUAL FINANCIAL STATEMENTS
The Company shall disclose in its annual financial statements such
details regarding the Scheme as may be necessary in terms of any
applicable accounting and/or SE requirements.
28. AMENDMENTS OF SCHEME
The Trustees may, with the approval of the Company, amend, add to and/or
delete any of the provisions of this Scheme, provided that no such
amendment, addition or deletion shall affect the rights of any
Beneficiary in respect of any existing Offers made or Options granted to
such Beneficiary, except with the consent of such Beneficiary, and
provided further that no such amendment, addition or deletion shall be
such as to jeopardise any approval of the Scheme whilst the proper law
remains that of Jersey.
29. DISPUTES
Any dispute arising under or in respect of this Scheme shall be referred
to the decision of the Bankers, acting as experts and not as
arbitrators, whose decision thereon shall be final and binding on the
parties to the dispute.
30. ADDRESSES
30.1. The parties choose, for all purposes under this Deed, whether in
respect of
30
court process, notices or other documents or communications of
whatsoever nature (including the exercise of any Option), the
following addresses:
30.1.1. The Company : The registered address of the Company from
time to time;
30.1.2. The Trustees : The registered address of the Company from
time to time;
30.1.3. A Beneficiary : The address appointed in terms of clause
13.3.2 or clause 18.1.2, as the case may be.
30.2. Any person appointed as a Trustee in the place of any of the first
Trustees or any successor shall select an address for the purpose
of this clause 30.
30.3. Any notice or communication required or permitted to be given in
terms of this Deed shall be valid and effective only if in writing
(which shall include a telefax).
30.4. The Company, a Trustee or a Beneficiary may by notice to any other
party (except that a Beneficiary is not obliged to notify other
Beneficiaries) change its address to another address, provided
that the change shall become effective on the seventh day after
the receipt of the notice by the addressee.
30.5. Any notice to a party contained in a correctly addressed envelope,
and
30.5.1. sent by prepaid registered post to it at its appointed
address; or
30.5.2. delivered by hand to a responsible person during ordinary
business hours at its appointed address
shall be deemed to have been received, in the case of clause
30.5.1, on the tenth business day after posting (unless the
contrary is proved) and, in the case of clause 30.5.2, on the day
of delivery.
30.6. Notwithstanding anything to the contrary herein contained, a
written notice or communication actually received by a party shall
be an adequate written notice or communication to it
notwithstanding that it was not sent to or
31
delivered at its chosen address.
31. ISSUES OF SHARES TO ANY PERSON
The Company shall be entitled at any time to issue new Shares to any
person, on such terms and conditions as the Company may determine. None
of the Beneficiaries (nor their representatives or their
successor-in-title) shall have any action of whatsoever nature (including
an action based on an alleged oppression or fraud on minority
shareholders) arising from any such issue of Shares to any person.
32. DETERMINATION OF MARKET VALUE OF SCHEME SHARES
32.1. The Market Value of a Scheme Share on any date before 31 March
1999 shall be determined by the Company. The Market Value of a
Scheme Share shall thereafter be determined annually by the
Bankers and in doing so the Bankers shall value each Scheme Share
as a direct proportion of the value of the whole of the issued
Share capital of the Company, assuming a sale of the whole of the
Company to a single buyer. All the information which shall be made
available to a willing buyer and a willing seller in these
circumstances shall therefore be made available to the Bankers. In
determining the Market Value of a Scheme Share the Bankers shall
act as experts and not as arbitrators and their decision shall be
final and binding on the Company, the Trustees and all
Beneficiaries.
32.2. For the purposes of the annual determination of the Market Value
of the Scheme Shares, the Bankers shall within thirty (30) days
after the completion in each Year of the annual financial
statements of the Company provide the board of directors of the
Company and the Trustees with a signed certificate setting out the
Market Value of each Scheme Share, which value shall hold good
until the next determination thereof by the Bankers.
32.3. If the Shares are listed on a SE, the manner of determining the
Market Value set out in clauses 32.1 and 32.2 shall, if the
Trustees in their Discretion so determine, not apply, and the
Market Value of a Scheme Share at any date
32
shall be equivalent to the middle market price of a listed Share
of the same class as the Scheme Shares on the immediately
preceding trading day as determined by the Trustees.
32.4. If the listing as aforesaid of the Shares is at any time
suspended, then the manner of determining the Market Value shall
revert, for the duration of the suspension, to that set out in
clauses 32.1 and 32.2. Notwithstanding anything to the contrary in
this Scheme, the effective date of the sale of any Scheme Shares
purchased by the Trust during the period of any suspension of the
listing of the Shares, shall be deemed to be the date on which
such suspension is lifted or the date of the first determination
of the Market Value of the Scheme Shares by the Bankers after the
date of sale, whichever is earlier.
33. EMPLOYMENT RIGHTS
Neither the adoption of this Scheme, nor the making of Offers or granting
of Options, shall confer upon any Employee any right to continued
Employment with any Group company or affect in any way the right of any
Group company to terminate an Employment relationship at any time. Except
as specifically provided in this Scheme or by the Trustees, neither the
Trustees nor any Group company shall be liable for the loss of existing
or potential profit in Offers made or Options granted under this Scheme
in the event of termination of an Employment relationship.
34. PROPER LAW
This Deed, the Scheme and all determinations made and related actions
taken by the Trustees shall be governed by the laws of Jersey, Channel
Islands, and shall be construed accordingly, notwithstanding the fact
that one or more Trustees may from time to time be resident or domiciled
elsewhere than in the Island of Jersey.
35. CHANGE OF PROPER LAW
The Trustees, with the consent of the Company, may, by instrument,
declare that the proper law of the Scheme shall be the law of some other
place in any part of the
33
world under which the terms of the Scheme shall be capable of taking
effect and such law shall thereupon become the proper law of the Scheme,
but subject to the power conferred by this clause and until any further
declaration be made under such power, provided always that so often as
any such declaration shall be made, the Trustees shall be at liberty to
make such consequential alterations or additions in or to the trusts,
powers and provisions of the Scheme as the Trustees may consider
necessary or desirable to ensure that the trusts, powers and provisions
of the Scheme shall, mutatis mutandis, be as valid and effective as they
are under the law of Jersey.
36. ACTS OF THE COMPANY
36.1. Any power, right or discretion conferred on the Company by this
Deed shall, unless otherwise expressly provided herein, be
exercisable by a resolution of its board of directors or of the
renumeration committee of such board of directors or of a
committee thereof appointed for the purposes of the Deed or by
some person duly nominated in the manner aforesaid by the Company
to exercise such powers and discretions. Any writing purporting to
be a copy of a resolution of the board of directors or a committee
thereof, signed by the chairman of the meeting, shall be
sufficient evidence of the exercise of the power, right or
discretion thereby involved to any person acting thereon in good
faith and without negligence.
36.2. The Company shall, in connection with the administration of the
Scheme, do all things and give to the Trustees all information in
its power or possession which shall reasonably be required by the
Trustees.
34
SIGNED BY /s/ XXXXX X. XXXXXXXXXX
for and on behalf of
MIH LIMITED
SIGNED BY /s/ XXXXX XXXXXX
for and on behalf of
ERNST & YOUNG TRUSTEES LIMITED
35
SCHEDULE
PART 1
CESSATION OF OFFICE OF TRUSTEES AND SUCCESSION
1. Appointment and Removal of Trustees
1.1. The Company has the power of appointing, by instrument, new or
additional Trustees of the Scheme.
1.2. The minimum number of Trustees shall be one.
1.3. The Company may at any time by instrument remove a Trustee from
office with immediate effect, whereupon the relevant Trustee shall
execute such documents and do such things as may be necessary to
give proper effect to such removal, it being provided that a
purported removal under this paragraph 1.3 which would result in
there being less than the minimum number of trustees of the Scheme
shall have no effect.
1.4. Acts or instruments done or executed for the proper vesting of the
assets of the Trust in new or additional Trustees shall be done
and executed by the continuing or retiring Trustee at the expense
of the Company, provided always that in the event of the
retirement or removal of any Trustee hereunder such outgoing
Trustee shall be released from all claims, demands, actions,
proceedings and accounts of any kind on the part of any person
(whether in existence or not) actually or prospectively interested
under this trust in all or any part of the assets of the Trust or
under the trusts of the Scheme or in respect of any act or thing
done or omitted in execution or purported execution of such trusts
other than and except only actions -
1.4.1. arising from any breach of trust in which such Trustee was
a party or privy; or
1.4.2. to recover from such Trustee trust property or the proceeds
of trust property in the possession of such Trustee or
previously received by such Trustee) and converted to his
use.
36
2. Resignation of Trustees
2.1. Any Trustee may resign his appointment as Trustee by serving on
the Company notice in writing to that effect and such resignation
shall take effect on the expiry of 14 clear days after receipt by
the Company of such notice or (if the result of the resignation
becoming effective would but for this provision, be that there
would be less than the minimum number of Trustees) on such later
date when the resignation becoming effective would not have that
result and the Trustee so resigning, the Company and the other
Trustee(s) shall execute such documents and do such things as may
be necessary to give proper effect to such resignation.
2.2. Where a person for any reason ceases to hold office as a Trustee
and such person or his personal representatives or (in the case of
a corporate person) its liquidator, reasonably apprehends that it
or they is/are or may be or become under any liability (including
a contingent liability and a fiscal liability of any nature
whatsoever arising in any part of the world) and -
2.2.1. such liability has been incurred or may be incurred by that
person or his personal representatives or its liquidator in
consequence of that person having been a Trustee; and
2.2.2. that person would have been entitled to be exonerated or
discharged from liability or would have been reimbursed for
the same by the Company if that liability had been
discharged at a time when he was still a Trustee;
the Company shall covenant to indemnify that person or his
personal representatives or its liquidator against such liability.
2.3. If for any reason the duty imposed on the Company to covenant as
mentioned in paragraph 2.2 is unenforceable or otherwise invalid
or ineffective or inapplicable or the Company refuses to comply
with such duty, the Trustees shall nevertheless have power, if in
their discretion they think fit, to covenant to indemnify any such
person or his personal representatives or its liquidator out of
the assets of the Trust against any such liability as aforesaid.
37
PART II
POWERS OF TRUSTEES
1. Trustees' Powers
1.1. The Trustees shall, in relation to the assets of the Trust, have
all the same powers as a natural person acting as the beneficial
owner thereof and without prejudice thereto and to all statutory
powers and immunities, shall have the powers and immunities set
out herein without being limited by any specific powers set out
herein, provided that the Trustees shall not exercise any of their
powers so as to conflict with the beneficial provisions of the
Scheme or to infringe any restrictions expressly imposed herein
upon the exercise of any powers.
1.2. In any case of doubt or dispute about the meaning and the effect
of any word, phrase or provision in the Deed the same shall be
referred for interpretation to the Trustees whose decision thereon
shall be final and conclusive.
1.3. The Trustees shall have and be entitled to exercise all powers,
rights, authorities and discretions in connection with the Scheme
which are required or proper to enable them to carry out any
transaction, act, instrument or thing arising under or in
connection with the Scheme. The consent or concurrence of the
Employees or the Beneficiaries or any of them shall not be
necessary in connection with the giving of any receipt or
discharge or the making of any payment or the doing of any act or
thing made or done in the exercise of their powers as Trustees or
in connection with the Scheme, except as is expressly provided in
the Deed. Persons dealing in good faith with the Trustees in
relation to the Scheme shall not be entitled to, or be under any
obligation to, enquire of the Trustees about the investment or
application of monies paid or property transferred by them to the
Trustees, but shall be
38
completely exonerated by the Trustees' receipt.
1.4. In the event of the Trustees being liable to or accountable for
any tax imposed in any jurisdiction or other imposition of any
kind referable to the assets of the Trust or any benefits payable
under the Scheme or otherwise in connection with the Scheme, the
Trustees shall be entitled to pay such tax or other imposition
from the assets of the Trust notwithstanding that payment of the
same would not be legally enforceable in the jurisdiction in which
the assets of the Trust are for the time being situated.
2. Decisions and Meetings of the Trustees
2.1. The Trustees may make whatever arrangements and regulations they
consider appropriate for the making and recording of their
decisions and for the holding of, convening of and procedure at,
meetings of the Trustees.
2.2. Without prejudice to paragraph 2.1, every decision, resolution or
exercise of a power or direction required to be, or capable of
being made, by the Trustees shall be validly made if so made by a
majority in number of the Trustees and any instrument executed in
pursuance of any such decision, resolution or exercise shall have
binding legal effect (as if executed by all the Trustees) if it is
executed by a majority in number of the Trustees. However, this
provision shall not render a Trustee liable for any act or thing
done or omitted without his consent.
3. Professional Advice
The Trustees may in relation to the Scheme rely on the advice or opinion
(whether or not obtained by them) of any accountant, actuary, broker,
lawyer, medical practitioner, or other professional person, including a
firm or company of pension consultants which the Trustees believe to be
of good repute and shall not be responsible for any loss to the assets of
the Trust occasioned as a result of acting in accordance with such advice
or opinion. The cost of obtaining such advice or opinion (to the extent
that it is not otherwise paid) shall form part of the expenses of the
Scheme.
39
4. Delegation by Trustees
The Trustees shall have and may exercise the following powers in addition
to all other powers vested in them by the Deed and by law, namely:
4.1. power to delegate to any person or body of persons which the
Trustees believe to be of good repute (whether or not that person
or one of those persons is one of the Trustees) such of their
powers, duties, authorities and discretions over investments as
they may deem expedient for the convenient administration of the
Scheme;
4.2. power from time to time to authorise (in writing) such persons as
they think fit to draw cheques on any banking account of the
Scheme or to endorse any cheque or to give receipts and discharges
and so that any such receipt or discharge shall be as valid and
effective as if it were given by the Trustees and so that the
provision of a written authority of the Trustees shall be a
sufficient protection to any person taking any such receipts or
discharge or otherwise acting under or relying upon such
authority;
4.3. power to make arrangements generally for the administration of the
Scheme as they think fit and, in particular, to employ such agents
and staff, including a secretary, to transact any business of the
Scheme, including signing certificates and making and receiving
payments and granting receipts and discharges, but subject always
to the directions and instructions of the Trustees and to such
regulations as the Trustees may make from time to time for the
purpose of his duties. The remuneration of such person or persons
shall be part of the expenses of the Scheme incurred by the
Trustees for its proper administration.
5. Trustees' Right to Charge
5.1. A Trustee who is an individual engaged in a profession or business
may charge and be paid all reasonable professional and other
charges for business done, time spent and services rendered by him
or his firm in connection with the trusts and powers hereof, both
for acting as such professional adviser and for acting as Trustee
hereof. Such payment will be over and above his out of
40
pocket expenses (which will be reimbursed to the Trustee) and will
be made irrespective of whether the services are such as would
normally be undertaken by a professional adviser or otherwise.
5.2. Any Trustee which is a company shall be entitled to charge and be
paid out of the Trust fund and/or the income thereof, such
remuneration as may from time to time be agreed between it and the
Company. However, in default of such agreement, the Trustee shall
be paid in accordance with its scale of fees from time to time in
force.
6. Expenses
The Company shall be responsible for the expenses and remuneration
incurred by the Trustees in the administration of the Scheme. In the
event that part or all of such expenses or remuneration is not paid, the
Trustees shall recover such expenses or remuneration (as the case may be)
from the assets of the Trust.
7. Specific Powers
The Trustees have the following specific powers, apart from such other
powers as may be conferred upon them by law or elsewhere in this Deed
(whether expressed or implied), but subject always to the provisions of
this Deed, namely:
7.1. to acquire, for the purpose of the Scheme, Shares either by
original subscription or purchase, and upon such terms as they in
their Discretion may deem fit;
7.2. to invest the surplus monies of the Trust in such investments, on
such terms and in such manner as they in their Discretion may
determine;
7.3. to realise any such investment and to re-invest the proceeds in
the manner aforesaid;
7.4. to borrow or raise monies from the Company and/or any other person
for the purposes of the Scheme, on such terms as they in their
Discretion may deem fit;
41
7.5. subject to any applicable Statutes, to open and operate banking
and building society accounts of all descriptions;
7.6. to draw, accept, make or endorse cheques, bills of exchange or
promissory notes for and on behalf of the Trust;
7.7. to exercise all rights conferred by Shares and other assets of the
Trust, including voting rights, rights of conversion, rights to
take up further allotments (by way of Capitalisation or Rights
Issues) of Shares and the like, as they in their Discretion may
deem fit;
7.8. to make loans to any person, whether interest-bearing or otherwise
and whether secured or unsecured, for any purpose considered by
the Trustees in their Discretion to be in the interests of the
Trust and the Beneficiaries;
7.9. to exercise such further rights, powers and authorities as may
from time to time be conferred upon them by the Company;
7.10. to form a trust or trusts, and settle the terms and provisions of
such trust/s, for the benefit of Employees, and their respective
spouses, descendants, dependants and/or nominees, who may benefit
or may have benefitted under the Scheme.
8. Capacity and Locus Standi
Without prejudice to the above, the Trustees shall have:
8.1. full capacity to contract in their capacities as such, subject
always to such limitations, if any, as may be imposed by this
Deed, provided that they will under no circumstances be personally
liable on any such contract;
8.2. locus standi in judicio and be capable of bringing, defending,
opposing, withdrawing, settling and/or otherwise acting in
connection with any proceedings whatsoever in or before any court,
or in any arbitration, or before any other forum, provided that
all costs reasonably incurred by them
42
in that regard shall be for the account of the Trust.
PART III
DUTIES OF TRUSTEES
These are the duties referred to in clause 6 of this Deed.
The Trustees, in addition to any other duty imposed by this Deed, whether
express or implied, shall -
1. make Offers or grant Options to Employees in terms of clause 12 of the
Deed;
2. procure that all Reserved Shares and Capitalisation Shares remain
registered in the names of the Trustees or their nominee and ensure that
they remain so registered until they are transferred to Beneficiaries;
3. procure that all circulars, letters and other documents issued to
shareholders of the Company in any Rights Issue are issued to
Beneficiaries as well;
4. cause to be transferred to a Beneficiary upon his complying with his
obligations in terms of any contract resulting from the acceptance of an
Offer or the exercise of an Option, the Scheme Shares acquired by him,
which shall cease to be Reserved Shares, and all Capitalisation Shares
linked thereto, which shall, however, be subject to the pre-emption
provisions set out in part V of the Schedule and, if applicable, to the
Put and Call Option;
5. ensure that a Beneficiary shall, as a precondition to Scheme Shares being
transferred to him or the acceptance of an Option, execute a security
agreement in favour of the Trustees to give a security interest over all
Scheme Shares held by the Beneficiary from time to time including any
Capitalisation Shares and any Rights Issue Shares acquired by that
Beneficiary on account of his holding of Scheme Shares or an Option
pursuant to the terms of the laws of the British Virgin Islands . The
security agreement shall serve as security for the due -
43
5.1. payment by a Beneficiary of all amounts owing by the Beneficiary
to the Trustees pursuant to the provisions of the Scheme; and
5.2. fulfilment by the Beneficiary of all the Beneficiary's obligations
to the Trustees under the Deed and, in particular, the Put and
Call Option (if applicable);
6. pay over to the Company all surplus funds (after discharging liabilities)
held by the Trustees from time to time, which the Trustees in their
Discretion consider will not immediately be required by them for the
purpose of the Scheme;
7. cause proper records and books of account to be kept of the business and
affairs of the Trust and their administration thereof, which records and
books shall be in the custody of the Company on behalf of the Trustees;
8. cause to be prepared and audited, as soon as possible after the end of
each Year:
8.1. a balance sheet and income statement;
8.2. such further accounts, if any, of the Trust as the Trustees may,
in their Discretion, deem fit;
9. as soon as possible after the completion of such balance sheet and
accounts referred to in 8 above, deliver to the Company 3 (three) copies
thereof, duly signed by the Trustees.
PART IV
TRUSTEES' PRIVILEGES, EXEMPTIONS AND INDEMNITIES
1. TRUSTEES' INDEMNITIES
44
1.1. No Trustee shall be responsible, chargeable or liable in any
manner whatsoever for or in respect of any loss of or any
depreciation or default upon any of the investments, securities,
stocks or bank or other deposits in or upon which the monies and
property comprising the assets of the Trust or any part thereof
may at any time be invested or deposited pursuant to the
provisions hereof or for any delay which may occur from whatever
cause in the investment of any monies from the assets of the Trust
or for the safety of any securities or documents of title
deposited by the Trustees for safe custody.
1.2. No Trustee shall as trustee of the Scheme or in respect of the
exercise of the rights or powers hereunder incur any personal
responsibility or be liable for anything whatsoever except for
breach of trust arising from his own fraud, wilful misconduct or
gross negligence and (except only in such case) the Trustees shall
be entitled to be indemnified out of the assets of the Trust, in
priority to any payment to or in respect of the Beneficiaries,
against all liabilities and expenses incurred by them in the
execution or purported execution of the powers, trusts,
authorities and discretions vested in the Trustees by the Deed and
against all proceedings, costs, charges, expenses, claims and
payments in respect of any matter or thing done or omitted in any
way relating to the Scheme or relating to or arising out of the
Deed. The Trustees may retain and pay out of the assets of the
Trust the amount of any such liabilities and expenses and of any
monies payable to them under the foregoing indemnity and the
Trustees shall have a prior lien on the assets of the Trust for
all monies payable to them under this paragraph 1.
1.3. The Trustees shall not be bound by, or be required to interfere
in, the management or conduct of the Company, but so long as there
is no notice of any act of dishonesty or misappropriation of
monies on the part of the person or persons (including the
managing or general partner in the case of a partnership) having
the management of the business of the Company, the Trustees may
leave the conduct of such business wholly to such person or
persons and shall not be liable for any act or default of such
person or persons.
1.4. Nothing contained in this paragraph 1 or elsewhere in this Deed
shall relieve
45
a remunerated Trustee or a professional nominee company from any
liability arising out of its or his own breach of trust or
negligence. Nor shall anything so contained relieve any other
corporate body, officer or person from liability in respect of
negligence in the performance of any duties on behalf of the
Scheme for which it or he is remunerated.
2. A Trustee shall not -
2.1. be obliged to furnish any security to any applicable authority or
to any other officer or official for the performance of his duties
in terms hereof, whether in terms of the Statutes or otherwise;
2.2. be disqualified from (but only if a prior full disclosure has been
made to the other Trustees)
2.2.1. acting as adviser, agent, broker or attorney to or
contracting with the Trustees;
2.2.2. obtaining any remuneration in respect of his services in
any capacity referred to in 2.2.1 above.
46
PART V
RIGHTS OF PRE-EMPTION
1. The provisions of this part V apply to any person or trust, including the
Employees' Trust ("Covenantor") who or which acquires Shares in the
Company pursuant to the Scheme, whether or not he is an Employee, but
shall be subject to the provisions of Part VI (to the extent that the
latter apply to a Covenantor).
2. For so long as this Schedule applies to a Covenantor, he will not sell or
otherwise dispose of or transfer any Shares owned by him, except as set
out in 3 below.
3. Each Covenantor undertakes that if at any time he intends to sell or
otherwise dispose of or transfer any Shares owned by him he shall serve a
written notice on the Trustees (and, if the Covenantor wishes to sell
such Shares to a specified third party purchaser (who shall be a bona
fide purchaser) attach a copy of a written offer from that purchaser to
purchase the Shares) in terms of which the Covenantor shall offer to sell
the Shares to the Trustees at the same price as that offered by the third
party purchaser or the Market Value of the Shares on the day preceding
the date of the offer, whichever is the higher, and the Trustees shall be
entitled to accept the offer (by written notice to the Beneficiary)
before the expiry of seven days after the date of the offer.
4. If any Shares are purchased in terms of 3 above, the purchase price shall
be payable against delivery of the Shares in transferable form not later
than 7 (seven) days after the date of purchase. The cost of transfer
shall be paid by the Trustees.
5. If the Trustees do not accept an offer made in terms of 3 above in
respect of all of the Shares offered, the Beneficiary may, within 10
(ten) trading days after the expiry of the offer, sell the Shares to a
bona fide third party or, if applicable, accept the offer from the
purchaser referred to in such offer.
47
PART VI
PUT AND CALL OPTION
(OFFERS ONLY)
If you wish to participate in the scheme by way of a share offer this document
must be completed and returned together with the acceptance form and the
security agreement.
THIS AGREEMENT is made the day of 199[ ] between ("the
Beneficiary") AND [ ], trustees of the MIH Limited
Share Trust ("the Trustees")
pursuant to which and in consideration of the mutual covenants contained herein
the Beneficiary and the Trustees agree that:
1. terms used in this Agreement shall, unless the context otherwise
required, have the meanings ascribed to them in the Deed constituting the
MIH Limited Share Trust ("the Scheme");
2. the Beneficiary shall not sell, transfer or otherwise dispose of any of
his Scheme Shares, nor shall he pledge, hypothecate or otherwise encumber
such scheme shares, except as set out in the Security Agreement, clauses
22 and 26.2 of the Scheme and in this Agreement;
3. the Beneficiary hereby grants the Trustees an option (the "Call Option")
to purchase the Scheme Shares acquired by the Beneficiary pursuant to the
Offer dated _______________________ 199_ in accordance with the terms set
out in this Agreement;
4. the Trustees hereby grant the Beneficiary an option (the "Put Option") to
require that the Trustees purchase the Scheme Shares acquired by the
Beneficiary pursuant to the Offer dated _________________________ 199_ in
accordance with the terms and conditions set out in this Agreement;
5. the Put Option may, subject to 11 below, be exercised by the Beneficiary
in respect of
48
any Scheme Shares for which the full Purchase Price has been paid. Where
a Put Option is exercised, the purchase price payable by the Trustees for
the Scheme Shares which are the subject of the Put Option ("Put Shares")
shall be the Market Value thereof as at the date on which the Put Option
is exercised;
6. the Call Option may, subject to 7, 8 and 10.2 below, be exercised by the
Trustees following the occurrence of any of the following events:
6.1. subject to clause 20.2 of the Scheme, the Beneficiary ceasing to
be an Employee for any reason whatever, or
6.2. the non-payment by the Beneficiary of any amounts which are due
and owing to the Trustees pursuant to the Scheme;
6.3. the Beneficiary entering into an arrangement with his creditors or
being declared bankrupt; or
6.4. a resolution of the Trustees to terminate the Scheme in
consequence of a determination by the Trustees that there has been
a change of control in respect of the Company as is referred to in
clause 26 of the Scheme;
7. subject to 9 below, where the Call Option is exercised in respect of
Scheme Shares of which the full Purchase Price has not been paid and such
Call Option has become exercisable, other than by reason of the cessation
of employment of the Beneficiary by reason of his death, retirement
through ill health, disability, having reached the normal group
retirement age or any other reason approved by the Trustees, in their
discretion, in respect of the Beneficiary in question, the purchase price
per Scheme Share at which the Call Option shall be exercised shall be an
amount equal to the lower of the Market Value thereof on the Offer Date
and on the date of exercise;
8. where the Call Option is exercised in respect of Scheme Shares for which
the full Purchase Price has been paid or where the Call Option is
exercised in respect of Scheme Shares for which the full Purchase Price
has not been paid and the Call Option has become exercisable by reason of
the cessation of employment of the Beneficiary by reason of his death,
retirement through ill health, disability, having reached the normal
group retirement age or any other reason approved by the Trustees, in
their discretion, in respect of the Beneficiary in question, the purchase
price payable by the Trustees to the Beneficiary shall be the Market
Value of the Scheme Shares on the date of exercise;
49
9. where the Call Option has become exercisable following the Trustees'
resolution to terminate the Scheme in consequence of a change of control
as referred to in 6 above, the exercise of the Call Option shall take
place on the 31st day following such resolution without further notice to
the Beneficiary and the price to be paid by the Trustees for the Scheme
Shares shall be the price determined in accordance with clause 26 of the
Scheme and not the price determined in accordance with 7 or 8 above of
this Agreement;
10. in addition to the Scheme Shares referred to in 3 above, this Agreement
shall apply to:-
10.1. Capitalisation Shares acquired by the Beneficiary by reason of the
holding of the Scheme Shares to which this Agreement relates as
though those Capitalisation Shares had been acquired at the same
time as the Scheme Shares and formed part of the original holding
to which this Agreement relates;
10.2. Rights Issue Shares acquired by the Beneficiary pursuant to clause
23 of the Scheme. Notwithstanding anything to the contrary in the
Scheme or in this Agreement, where a Call Option is exercised in
respect of Rights Issue Shares the purchase price payable by the
Trustees to a Beneficiary shall be the Market Value of such Rights
Issue Shares on the date of exercise;
11. the purchase price of the Scheme Shares purchased pursuant to this Call
Option shall be paid:-
11.1. if the Beneficiary has any indebtedness to the Trustees pursuant
to or arising from the Scheme, pro tanto, to the Trustees. If the
amount of such indebtedness exceeds the amount of the purchase
price for such Scheme Shares, payment to the Trustees of the whole
of the purchase price shall operate as a complete discharge of the
Beneficiary's indebtedness to the Trustees;
11.2. as to the balance, if any, to the Beneficiary.
The Trustees shall pay the purchase price as aforesaid within 14
(fourteen) days after the date of exercise against delivery of such
Scheme Shares to the Trustees in transferable form;
12. the Beneficiary irrevocably empowers and authorises the Trustees or any
agent of the Trustees, to do all such things and to sign all such
documents on the Beneficiary's behalf, as may be necessary to give effect
to this Agreement;
50
13. notwithstanding anything to the contrary in this Agreement or in the
Scheme, if at any time the Shares are publicly traded on a SE, then
this Agreement shall cease to have any force or effect in respect of all
Scheme Shares for which the Purchase Price has been paid in full and
neither the Beneficiary nor the Trustees shall have any rights or
obligations hereunder in respect of such Scheme Shares. In such
circumstances the Beneficiary shall be entitled to deal with such Scheme
Shares without restriction, except such restrictions as are contained in
the rest of the Deed;
14. this Agreement shall be governed by the laws of Jersey, Channel Islands
and shall be construed accordingly and the Beneficiary hereby submits to
the non-exclusive jurisdiction of the courts of Jersey in connection
herewith.
Signed by the Beneficiary
----------------------
Signed on behalf of the Trustees
------------------------
51
PART VII
PUT AND CALL OPTION
(OPTIONS ONLY)
If you wish to participate in the scheme by way of an option this document must
be completed and returned together with the acceptance form and the security
agreement.
THIS AGREEMENT is made the day of 199[ ] between ("the
Beneficiary") AND [ ], Trustees of the MIH Limited
Share Trust ("the Trustees")
pursuant to which and in consideration of the mutual covenants contained herein
the Beneficiary and the Trustees agree that:
1. terms used in this Agreement shall, unless the context otherwise
requires, have the meanings ascribed to them in the Deed constituting the
MIH Limited Share Trust ("the Scheme");
2. the Beneficiary shall not sell, transfer or otherwise dispose of any of
his Scheme Shares, nor shall he pledge, hypothecate or otherwise encumber
such Scheme Shares, except as set out in the Security Agreement, clauses
22 and 26.2 of the Scheme and in this Agreement;
3. the Trustees hereby grant the Beneficiary an option (the "Put Option") to
require that the Trustees purchase the Scheme Shares registered in the
name of the Beneficiary pursuant to the Option granted on the Option Date
in accordance with the terms and conditions set out in this Agreement;
4. where a Put Option is exercised, the purchase price payable by the
Trustees for the Scheme Shares which are the subject of the Put Option
("Put Shares") shall be the Market Value thereof as at the date on which
the Put Option is exercised;
5. the Beneficiary hereby grants the Trustees an option (the "Call Option")
to purchase the Scheme Shares acquired by the Beneficiary pursuant to the
Option granted on the
52
Option Date in accordance with the terms set out in this Agreement;
6. the Call Option may be exercised by the Trustees following the occurrence
of any of the following events:
6.1. subject to clause 20.2 of the Scheme, the Beneficiary ceasing to
be an Employee for any reason whatever;
6.2. the non-payment by the Beneficiary of any amounts which are due
and owing to the Trustees pursuant to this Scheme;
6.3. the Beneficiary entering into an arrangement with his creditors or
being declared bankrupt; or
6.4. a resolution of the Trustees to terminate this Scheme in
consequence of a determination by the Trustees that there has been
a change of control in respect of the Company as is referred to in
clause 26 of this Scheme;
7. subject to 8 below, the purchase price per Scheme Share at which the Call
Option shall be exercised shall be an amount equal to the Market Value
thereof, on the date of exercise of the Call Option;
8. where the Call Option has become exercisable following the Trustees'
resolution to terminate the Scheme in consequence of a change of control
as referred to in 6.4 above, the exercise of the Call Option shall take
place on the 31st day following such resolution without further notice to
the Beneficiary and the price to be paid by the Trustees for the Scheme
Shares shall be the price determined in accordance with clause 26 of the
Scheme and not the price determined in accordance with 7 above of this
Agreement;
9. in addition to the Scheme Shares referred to in 2 above, this Agreement
shall apply to:-
9.1. Capitalisation Shares acquired by the Beneficiary by reason of the
holding of the Scheme Shares to which this Agreement relates as
though those Capitalisation Shares had been acquired at the same
time as the Scheme Shares and formed part of the original holding
to which this Agreement relates;
9.2. Rights Issue Shares acquired by the Beneficiary pursuant to clause
23 of the Scheme. Notwithstanding anything to the contrary in the
Scheme or in this Agreement, where a Call Option is exercised in
respect of Rights Issue Shares
53
the purchase price payable by the Trustees to a Beneficiary shall
be the Market Value of such Rights Issue Shares on the date of
exercise;
10. the purchase price of the Scheme Shares purchased pursuant to this Call
Option shall be paid:-
10.1. if the Beneficiary has any indebtedness to the Trustees pursuant
to or arising from the Scheme, pro tanto, to the Trustees. If the
amount of such indebtedness exceeds the amount of the purchase
price for such Scheme Shares, payment to the Trustees of the whole
of the purchase price shall operate as a complete discharge of the
Beneficiary's indebtedness to the Trustees;
10.2. as to the balance, if any, to the Beneficiary.
The Trustees shall pay the purchase price as aforesaid within 14
(fourteen) days after the date of exercise against delivery of such
Scheme Shares to the Trustees in transferable form;
11. the Beneficiary irrevocably empowers and authorises the Trustees or any
agent of the Trustees, to do all such things and to sign all such
documents on the Beneficiary's behalf, as may be necessary to give effect
to this Agreement;
12. notwithstanding anything to the contrary in this Agreement or in the
Scheme, if at any time the Shares become publicly traded on a SE, then
the Put Option shall fall away and the provisions relating thereto shall
cease to have any force or effect. Thereafter, neither party shall be
bound by the provisions of this Agreement and the Beneficiary shall be
entitled to deal with Scheme Shares which are registered in his name
without restriction, except such restrictions as are contained in the
rest of the Deed;
13. this Agreement shall be governed by the laws of Jersey, Channel Islands
and shall be construed accordingly and the Beneficiary hereby submits to
the non-exclusive jurisdiction of the courts of Jersey in connection
herewith.
Signed by the Beneficiary
----------------------
Signed on behalf of the Trustees
------------------------
54
PART VIII
DEED OF ADHERENCE
To: MIH Limited
Ernst & Young Trustees Limited
Dear Sirs
Deed constituting the MIH Limited Share Trust (the "Deed")
1. It is recorded that the Covenantor is a Subsidiary of MIH Ltd and that one
or more of the Covenantor's Employees will become Beneficiaries under the
Scheme.
2. The Covenantor hereby confirms that it has been supplied with a copy of the
Deed and hereby undertakes to each of the parties to the Deed, that it shall
observe, perform and be bound by the terms and conditions of the Deed and
all documents expressed to be supplementary or ancillary thereto as if
references therein to a Subsidiary were references also to the Covenantor.
3. The Covenantor confirms that its initial details for the purposes of clause
30 of the Deed are as follows:
[insert name, address and fax number].
4. Capitalised terms in this Deed of Adherence have the same meanings as in the
Deed.
Yours faithfully
------------------------
For and on behalf of
[insert name of Subsidiary]
55
