EXHIBIT 10.25
RULES OF THE XXXXXX (UK 2002) EMPLOYEE
SHARE PURCHASE PLAN
____________________________________________
(Adopted by the Company
on August 6, 2002
and approved by the Inland Revenue on
____________________________________________
under Reference ___________________)
____________________________________________
CONTENTS
1. INTRODUCTION...................................................... 1
2. NAME.............................................................. 1
3. DEFINITIONS....................................................... 1
4. INDIVIDUAL SAVINGS LIMITS......................................... 6
5. EXERCISE PRICE.................................................... 6
6. INVITATIONS AND APPLICATIONS FOR OPTIONS.......................... 7
7. GRANT OF OPTIONS AND SCALING-DOWN................................. 8
8. RESTRICTIONS ON TRANSFER OF OPTIONS............................... 10
9. EXERCISE OF OPTIONS............................................... 10
10. MANNER OF EXERCISE OF OPTIONS..................................... 12
11. MERGER, XXXX, CHANGE OF CONTROL AND LIQUIDATION................... 13
12. ROLLOVER OF OPTIONS............................................... 14
13. VARIATION OF CAPITAL.............................................. 16
14. AVAILABILITY OF AUTHORISED CAPITAL................................ 16
15. VARIATION AND TERMINATION OF PLAN................................. 17
16. ADMINISTRATION.................................................... 17
17. GENERAL........................................................... 18
18. GOVERNING LAW..................................................... 19
19. HEADINGS.......................................................... 19
RULES OF THE XXXXXX (UK 2002) EMPLOYEE
SHARE PURCHASE PLAN
1. INTRODUCTION
The Xxxxxx (UK 2002) Employee Share Purchase Plan ("Plan") is designed
to provide UK employees of Xxxxxx Industries Ltd ("Company") and its
subsidiaries with the opportunity to acquire common shares of the
Company, by granting options to such employees on such dates not later
than ten years following the Date of Approval (as defined below) as the
Board (as defined below) may from time to time determine. The Plan is
intended to constitute a "save as you earn" share option scheme within
the provisions of Schedule 9 of the Income and Corporation Taxes Act
1988.
2. NAME
This Plan shall be known as the "Xxxxxx (UK 2002) Employee Share
Purchase Plan".
3. DEFINITIONS
3.1 Except where inconsistent with the context the following words
and expressions shall have the Following meanings:-
"ACTUAL CONVERTED AGGREGATE AMOUNT" means the Actual Sterling
Aggregate Amount converted into United States dollars using
the spot exchange rate of Barclays Bank Plc at noon GMT on the
date of exercise of an Option;
"ACTUAL STERLING AGGREGATE AMOUNT" means for each Eligible
Employee the total amount in pounds sterling saved by that
Eligible Employee under a Savings Contract together with any
Bonus due under that Savings Contract;
"ASSOCIATED COMPANY" shall, for the purposes of Rule 9.3.6
have the meaning given to that expression in paragraph 23 of
Schedule 9 by virtue of Section 187(2) of the Taxes Act and,
for any other part of these Rules, "Associated Company" shall
have the meaning given to that expression in section 416 Taxes
Act;
"AUDITORS" means the auditors of the Company for the time
being;
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"BOARD" means:
1. the board of directors of the Company for the time
being; or
2. as appropriate a committee which has been duly
authorised by the board of directors of the Company
pursuant to Rule 16;
"BONUS" means:
1. the First Bonus, or
2. the Standard Bonus, or
3. the Maximum Bonus as appropriate in relation to any
particular savings contract;
"BONUS DATE" means in relation to any Savings Contract the
earliest date on which a Bonus is payable;
"CESSATION OF EMPLOYMENT" means the date on which an Option
Holder ceased to be employed within the Group and for this
purpose "Group" shall include any Associated Company;
"CONTROL" means control as defined in section 840 of the Taxes
Act;
"DATE OF APPROVAL" means the date on which the Plan is
approved by the Inland Revenue pursuant to Schedule 9;
"ELIGIBLE EMPLOYEE" means:
1. an employee of the Group, or
2. a director of the Company and/or of any Subsidiary
who is contracted to work full-time (and in any event
for not less than 25 hours per week exclusive of meal
breaks) for the Company and/or any of the
Subsidiaries,
who either has been such an employee or director continuously
since 1 January in the calendar year in which the Date of
Grant falls, and is chargeable to tax in respect of his office
or employment under Case 1 of Schedule E (as set out in
section 19 of the Taxes Act), or is any other employee of the
Group who is permitted by the Board to
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participate in the Plan, and is not precluded from
participating in the Plan by paragraph 8 of Schedule 9;
" EMPLOYEE TRUST" means any one or more trusts established by
the Company or any of its Subsidiaries under the terms of
which any one or more Eligible Employees may obtain benefit;
"ESTIMATED STERLING AGGREGATE AMOUNT" means for each Eligible
Employee an estimate of the Actual Sterling Aggregate Amount,
such estimate being based on the assumption that the Eligible
Employee continues to contribute fully to his Savings Contract
for the full term of the Savings Contract.
"ESTIMATED CONVERTED AGGREGATE AMOUNT" means the Estimated
Sterling Aggregate Amount converted into United States dollars
using the spot exchange rate of Barclays Bank Plc at noon GMT
on the Date of Grant;
"EXERCISE PRICE" means the amount per Share payable on the
exercise of an Option;
"FIRST BONUS" means the bonus payable following the making of
thirty six monthly (or the appropriate number of weekly)
payments pursuant to a 3 year Savings Contract;
"GMT" means Greenwich Mean Time;
"GRANT" means a resolution by the Board (or an action by a
person duly authorised by the Board) as a consequence of which
the Board has granted Options over that number of Shares which
is to be, and to those Eligible Employees which are to be,
determined in accordance with Rules 6 and 7 and the "DATE OF
GRANT" shall mean the date on which the resolution is passed
or the action is taken as appropriate.
"GROUP" means the Company and all its Subsidiaries for the
time being or, where appropriate, any Jointly-Owned Company
which has been approved by the board of Inland Revenue to
participate in the Plan (and/or any Subsidiary for the time
being of such Jointly-Owned Company) in each case whether
incorporated in the United Kingdom or elsewhere and which is
nominated by the Board to participate in the Plan;
"INVITATION" means the invitation sent to all Eligible
Employees pursuant to the provisions of Rule 6 which invites
the addressee to participate in the Plan.
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"JOINTLY-OWNED COMPANY" means any company which is jointly
owned by the Company (whether directly or indirectly) and one
other person (that is, controlled as to 50% by each of those
two persons);
"MARKET VALUE" means
1. on any day the market value of a Share determined in
accordance with the provisions of Part VIII of the
Taxation of Chargeable Gains Act 1992 and agreed in
advance for the purposes of the Plan with the Inland
Revenue Shares Valuation Division; or
2. on any day if at the relevant time shares of the same
class as the Shares are fully quoted on the New York
Stock Exchange, the average of the high and low
market quotation of shares of that class for the
preceding trading day;
"MAXIMUM BONUS" means the bonus payable pursuant to a 5 year
Savings Contract two years after an entitlement to a Standard
Bonus would accrue where the Eligible Employee has made the
appropriate election for a Maximum Bonus;
"OPTION" means a right to acquire Shares in the capital of the
Company granted pursuant to the Plan;
"OPTION CERTIFICATE" means a certificate evidencing the Option
as referred to in Rule 7.8;
"OPTION HOLDER" means a person who holds an Option or where
the context so permits the legal personal representative of
such person;
"PLAN" means the Xxxxxx (UK 2002) Employee Share Purchase Plan
established by these Rules subject to any amendments made in
accordance with their terms;
"RULES" means these rules as amended from time to time;
"SAVINGS CONTRACT" means a contract under a certified
contractual savings scheme (within the meaning of Section 326
Taxes Act) entered into with a bank or building society
nominated by the Board and which has been approved for the
purpose of Schedule 9 by the Inland Revenue;
"SCHEDULE 9" means Schedule 9 to the Taxes Act;
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"SHARES" means Class A common shares of the Company which
comply with the requirements of paragraphs 10 to 14 inclusive
of Schedule 9;
"SPECIFIED AGE" means:
1. sixty five years, or
2. any other age determined by the Board from time to
time provided that any other age determined by the
Board shall not be less than sixty years and not more
than seventy five years and any such determination
shall not be effective until the amendment has been
approved by the board of the Inland Revenue;
"STANDARD BONUS" means the bonus payable following the making
of sixty monthly or the appropriate number of weekly payments
pursuant to a 5 year Savings Contract;
"SUBSIDIARY" means a company which is under the Control of the
Company (or any Jointly-Owned Company, as the case may be) and
is a subsidiary of it within the meaning of Section 736 of the
Companies Act 1985;
"SUBSISTING OPTION" means an Option which has neither lapsed
nor been exercised;
"TAXES ACT" means the Income and Corporation Taxes Act 1988;
"TOTAL EXERCISE COST" means the total amount payable for
Shares, expressed as an amount in United States dollars, which
may be or are issued or transferred on the exercise of an
Option;
"TRUSTEES" means the trustees for the time being of the
Employee Trust as approved by the Board.
3.2 Words importing the singular shall include the plural and vice
versa and words importing the masculine shall include the
feminine.
3.3 References to a statute or to any part or parts thereof shall
include references to the same as from time to time amended or
re-enacted.
3.4 Except where inconsistent with the context and unless
otherwise stated any words or expressions used herein shall
have the same meanings as in schedule 9.
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4. INDIVIDUAL SAVINGS LIMITS
4.1 Following any particular invitation to participate in the plan
an eligible employee may apply for the grant of an option
provided that:-
4.1.1 the minimum contributions payable under the Savings
Contract to be entered into in respect of such grant
shall not be less than (pound)5 per month nor greater
than the amount per month specified from time to time
in paragraph 24(2)(b) of Schedule 9; and
4.1.2 the contribution payable in any month by the Eligible
Employee under the Savings Contract to be entered
into in respect of such grant when added to the
contributions payable under all other subsisting
Savings Contracts or savings contracts approved or
treated as approved by the Inland Revenue for savings
related share option schemes approved by the Inland
Revenue for the purposes of Schedule 9, shall not
exceed the greater of (pound)250 or the maximum
amount permitted by Schedule 9 or if less, such other
maximum amount specified by the Board or the Trustees
in its/their absolute discretion by reference to any
particular invitation.
5. EXERCISE PRICE
The Exercise Price for an Option shall be determined on the Date of
Grant subject to the following:-
5.1 In the case of an option to acquire one or more shares the
exercise price shall be 85% of the market value of a share (or
such higher percentage as may from time to time be permitted
by The taxes act); and
5.2 In the case of an option to subscribe for one or more shares
the exercise price shall be the greater of the nominal value
and 85% of the market value of a share (or such higher
percentage as may from time to time be permitted by the taxes
act).
5.3 The exercise price for an option shall be stated in united
states dollars.
5.4 Subject to rule 7.5 Options must be granted no more than 30
days after the day on which the market value is determined.
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6. INVITATIONS AND APPLICATIONS FOR OPTIONS
6.1 Subject to any requirements limits or restrictions contained
elsewhere in the rules the board and/or the trustees may in
its/their absolute discretion issue invitations to all persons
who are eligible employees.
6.2 The board (or in circumstances where options are to be granted
by the trustees, the trustees in consultation with the board);
6.2.1 shall have determined the maximum number of Shares
over which Options have been granted on the Date of
Grant; and
6.2.2 may have at that time determined a higher number to
which such maximum may be increased if and only if
the need for scaling down under Rule 7.5 will be
thereby avoided
subject in all events to the limit on the aggregate number of
Shares that may be issued under the Plan as set out in Rule
14.1.
6.3 Invitations shall include an application form, (in a form
determined by the board or trustees, as appropriate) together
with instructions for the completion and return of the
application in accordance with rule 6.4.
6.4 Invitations shall state whether the savings contracts to be
entered into in relation to the particular grant shall include
any one or more of:-
6.4.1 the First Bonus;
6.4.2 the Standard Bonus;
6.4.3 the Maximum Bonus;
and if appropriate must invite Eligible Employees to select
which Savings Contract they wish to enter into and to indicate
their selection on the application form.
6.5 Not later than the date specified in the invitation (being
neither earlier than fourteen nor later than twenty-one days
after the date of grant, unless on a particular occasion the
inland revenue has agreed to a variation in the time allowed
for the response to invitations) each eligible employee to
whom an invitation has been issued may
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return the application form provided pursuant to rule 6.3 To
the board or the trustees (as the case may be) thereby
indicating that he wishes to be granted an option.
6.6 Subject to rule 7 below, applications shall be taken to be for
an option over shares with a total exercise cost as near as
possible to but not exceeding the estimated converted
aggregate amount.
7. GRANT OF OPTIONS AND SCALING-DOWN
7.1 Subject to this rule 7 the option shall be over the number of
shares for which application is made.
7.2 Not later than the twenty-eighth day following the issue of
invitations the board (on behalf of the company) and/or the
trustees (as the case may be) shall confirm to each applicant
who is still an eligible employee that an option has been
granted to that eligible employee and indicating the maximum
number of shares over which the option has been granted.
7.3 Where any option has been granted by the board and the terms
specified in the option provide for the satisfaction of the
option by the issue of shares by the company then the board
may in its absolute discretion determine that in substitution
for the allotment and issue of shares it shall procure that
some or all of the shares over which the option subsists shall
be satisfied, in accordance with rule 14.2, By some other
person or body. Such determination may be made at any time
following the grant of any particular option and prior to the
resolution of the board to satisfy the exercise of any option
by the issue of share.
7.4 Options may be granted pursuant to the plan as follows:-
7.4.1 By the Board where such Option will, subject to Rule
14.2 below, be satisfied on its exercise by the
Company issuing Shares to the relevant Option Holder;
7.4.2 By the Board, where such Option will be satisfied on
its exercise by some other person or body (including,
without limitation, the Trustees);
7.4.3 By the Trustees where such Option on its exercise
will be satisfied by the transfer of Shares from the
Employee Trust.
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7.5 If the board and/or the trustees receive completed application
forms which indicate that the maximum number of shares over
which options have been granted on the date of grant is
insufficient after taking into account any higher number of
shares over which options have been granted pursuant to rule
6.2 Then reference to the fortieth day shall be substituted
for reference to the twenty-eighth day in rule 7.2 And the
following steps shall be carried out successively to the
extent necessary to eliminate the excess:-
7.5.1 each election for the Maximum Bonus to be included in
the repayment under the Savings Contract shall be
deemed to be an election for only the Standard Bonus
to be so included;
7.5.2 each election for the Standard Bonus or the First
Bonus to be included in the repayment under the
Savings Contract shall be deemed to be an election
for no bonus to be so included;
7.5.3 the excess over the minimum monthly savings
contribution chosen by each applicant in relation to
that particular grant shall be reduced pro rata to
the extent necessary;
7.5.4 each election for a 5 year Savings Contract shall be
deemed to be an election for only a 3 year Savings
Contract;
7.5.5 subject to Rule 7.6, applications will be selected by
lot each based on a monthly savings contribution of
(pound)5 and the inclusion of no bonus in the
repayment under the Savings Contract.
Each application shall be deemed to have been modified or withdrawn in
accordance with the application of the foregoing provisions and the
Board shall amend each Savings Contract proposal form to reflect any
reduction in monthly savings contributions resulting from such
application.
7.6 As an alternative to selecting applications by lot, the board
and/or the trustees may determine in its/their absolute
discretion that no options shall be granted.
7.7 For the avoidance of doubt, the grant of an option to an
eligible employee shall be conditional upon the eligible
employee having entered into a savings contract such that the
estimated converted aggregate amount will be not less than the
total exercise cost of the shares over which the option is
granted.
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7.8 The grant of an option shall be evidenced by the issue of a
certificate under the authority of the board or the trustees
as appropriate in such form as the board and/or the trustees
may determine and which shall specify:-
7.8.1 the Exercise Price;
7.8.2 the maximum number of Shares over which the Option is
granted based on the Barclays Bank plc
dollar/sterling spot exchange rate at noon on the
Date of Grant;
7.8.3 the Date of Xxxxx; and
7.8.4 a statement to the effect that the actual number of
Shares over which the Eligible Employee shall be able
to exercise an Option shall be determined on the date
of exercise of the Option (or as soon after that date
as is practicable) according to the dollar/sterling
spot exchange rate of Barclays Bank plc at noon GMT
on the date of exercise of the Option.
7.9 If any certificate shall be destroyed, lost, defaced or worn
out, it may be renewed on such evidence being provided and on
such terms as the board or trustees may require.
7.10 No option may be granted later than 10 years after the date of
approval.
8. RESTRICTIONS ON TRANSFER OF OPTIONS
An Option shall be personal to the Option Holder (or, where
appropriate, his legal personal representatives) and shall not be
assignable. Any purported assignment transfer, charge, disposal or
dealing with the rights and interests of the Option Holder shall render
the Option void.
9. EXERCISE OF OPTIONS
9.1 Subject to any provision in these rules to the contrary an
option shall:-
9.1.1 become exercisable on the Bonus Date; and
9.1.2 lapse six months after the Bonus Date.
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9.2 The maximum number of shares over which an option shall be
exercisable shall be determined using the exercise price and
the actual converted aggregate amount.
9.3 No option shall be exercisable over a number of shares to the
extent that the total exercise cost exceeds the actual
converted aggregate amount and, for the purposes of this rule,
the actual converted aggregate amount excludes the repayment
of any contribution the due date for payment of which falls
more than one month after the date on which repayment under
the savings contract is made.
9.4 An option may be exercised by an option holder in the
circumstances and within the periods specified below and
(except as set out in rule 9.4.4 Below) shall thereafter
lapse:-
9.4.1 if the Option Holder dies before the Bonus Date, the
period of twelve months after his death;
9.4.2 if the Option Holder dies in the six months following
the Bonus Date the period of twelve months after the
Bonus Date;
9.4.3 unless the Option Xxxxxx has died, and subject to
Rules 9.3 and 9.4.1, the period of six months
following Cessation of Employment by reason of injury
disability redundancy within the meaning of the
Employment Rights Act 1996 or retirement on reaching
an age not less than either the age at which he is
bound to retire in accordance with the terms of his
contract of employment or the Specified Age;
9.4.4 subject to Rules 9.3 and 9.1.2 the period of six
months after the Option Holder reaches the Specified
Age if he continues to be employed within the Group
after reaching such Specified Age;
9.4.5 unless the Option Holder had died, and subject to
Rules 9.3 and 9.1.2, the period of six months
following Cessation of Employment (other than for
reasons of dismissal for misconduct, by reason of
early retirement or voluntary redundancy) in
circumstances in which Rules 9.4.1, 9.4.2 and 9.4.3
do not apply provided that on such Cessation of
Employment at least three years have elapsed since
the Date of Xxxxx;
9.4.6 subject to Rules 9.3 and 9.1.2 the period of six
months following Cessation of Employment by reason of
the Company by which he is employed ceasing
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to be a member of the Group or by reason of the sale
of the undertaking in which he is employed to a
transferee which is neither a member of the Group nor
an Associated Company; and
9.4.7 the events specified in Rule 11.
9.5 Subject to rule 9.1.2 An option shall lapse if:
9.5.1 the Option Holder ceases to be employed within the
Group for any reason other than as set out in Rule
9.4 hereof provided that an Option Holder who ceased
to be an Eligible Employee by reason of pregnancy or
confinement and who exercises her right to return to
work under Section 45 of the Employment Protection
(Consolidation) Act 1978 before exercising an Option
under the Plan will be treated for these purposes as
not having ceased to be an Eligible Employee; or
9.5.2 the whole or part of an Option Holder's contributions
under the related Savings Contract are repaid to the
Option Holder before the earliest date on which the
Option may be exercised in accordance with this Plan;
or
9.5.3 the Option Holder is adjudicated bankrupt.
9.6 No option may be exercised when:
9.6.1 the Option Holder is; or
9.6.2 the personal representative(s) of an Option Holder
who at the date of his death is or are,
precluded from participating in the Plan by paragraph 8 of the
Schedule 9. In addition and (subject to Rules 9.4.1, 9.4.2,
9.4.3, 9.4.5 and 9.4.6) no Option may be exercised by an
Option Holder when he is not an Eligible Employee.
10. MANNER OF EXERCISE OF OPTIONS
10.1 In order to exercise an option the option holder or his legal
personal representative shall terminate the related savings
contract and deliver to the secretary of the company (or his
designee) or the trustees as appropriate his option
certificate together with a written notice signed by or on
behalf of the option holder and
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specifying the number of shares in respect of which the option
is being exercised and payment in full of the exercise price
in united states dollars for those shares.
10.2 An option may be exercised on one occasion only in respect of
all or any of the shares over which it is granted.
10.3 If the actual converted aggregate amount exceeds the total
exercise cost, the option holder shall receive a cash refund
to the extent that the actual converted aggregate amount
exceeds the total exercise cost.
10.4 If the actual converted aggregate amount is less than the
total exercise cost, the number of shares that the option
holder may purchase upon exercise of the option shall be
limited to the number of shares that can be purchased at the
exercise price using the actual converted aggregate amount.
10.5 All allotments, issues and transfers of shares shall be made
on such day or days as the board or the trustees may determine
and shall be made to the option holder (or at the absolute
discretion of the board or the trustees (as appropriate), to
one or more nominee or nominees including, for the avoidance
of doubt, to the administrators of any tax efficient equity
ownership plan nominated by the option holder) within 30 days
of the exercise of the relevant option subject however to any
necessary consents under any relevant enactments or
regulations for the time being in force having been obtained
(and it shall be the responsibility of the option holder to
comply with any requirements to be fulfilled in order to
obtain or obviate the necessity for any such consent).
10.6 If a dividend or other distribution is to be or is proposed to
be paid to holders of the shares on the register on a date
prior to the date of exercise of an option the shares to be
issued or transferred upon such exercise will not rank for
such dividend or other distribution. Subject to the foregoing
shares allotted or transferred upon the exercise of an option
shall rank pari passu in all respects with the shares in issue
on the date of such exercise
11. MERGER, SALE, CHANGE OF CONTROL AND LIQUIDATION
11.1 If any person obtains control of the company as a result of
making:-
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11.1.1 a general offer to acquire the whole of the issued
share capital of the Company which is made on a
condition such that if it is satisfied the person
making the offer will have Control of the Company; or
11.1.2 a general offer to acquire all of the shares in the
Company which are of the same class as the Shares;
any Subsisting Option held by an Option Holder may be
exercised (subject to Rule 13.1 below and to Rules 9.3 and
9.1.2 above) within six months of the time when the person
making the offer has obtained Control of the Company and any
condition subject to which the offer is made has been
satisfied (unless the Inland Revenue has agreed to a reduction
in the time allowed for the exercise of Subsisting Options)
and if not so exercised shall then lapse unless Rule 12 below
applies.
11.2 If as a result of the events specified in rules 11.1 A person
has obtained control of the company and, in accordance with
the provisions of that rule, the option holder has exercised
any subsisting option the company shall use its reasonable
endeavours to procure that following the transfer or allotment
(as the case may be) of shares to the option holder, inasmuch
as such shares were not previously included in the general
offer, the relevant party shall offer to acquire such shares
from the option holder upon the same terms as those upon which
the shares were originally acquired under the general offer.
11.3 If notice is duly given of a resolution for the voluntary
winding-up of the company (other than for the purpose of
reconstruction or amalgamation) an option holder may (subject
to rules 9.3 And 9.1.2) During the six months thereafter
exercise all or any of his subsisting options (but so that
such exercise shall be conditional upon the passing of such
resolution before the expiry of six months after the bonus
date) which shall then lapse.
12. ROLLOVER OF OPTIONS
12.1 If a company (in this rule called the "acquiring company") has
acquired control of the company as a result of any of the
events described in rules 11.1.1 Or 11.1.2 (Such acquiring of
control being referred to below as a "relevant event"), the
option holder may by agreement with the acquiring company at
any time within the appropriate period (as defined in rule
12.3 Below) release his rights under the plan (in this rule
referred to as the "old rights") in consideration of the grant
to him of
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rights (in this rule referred to as the "new rights") which
comply with paragraph 12.2 Below and relate to shares in the
acquiring company (or some other company which in relation to
the acquiring company falls within paragraph (b) or paragraph
(c) of paragraph 10 of schedule 9).
12.2 The new rights shall comply with each of the following
requirements:
12.2.1 the shares to which they relate shall satisfy the
conditions specified in relation to plan shares in
paragraphs 10 to 14 of Schedule 9;
12.2.2 the New Rights shall be exercisable in the same
manner as the Old Rights and subject to the
provisions of the Plan as it had effect immediately
before the release of the Old Rights;
12.2.3 the total Market Value, immediately before the
release, of the Shares which were subject to the
Option Holder's Old Rights shall be equal to the
total Market Value immediately after the grant of the
shares in respect of which the New Rights are granted
to the Option Holder; and
12.2.4 the total amount payable by the Option Holder for the
acquisition of shares in pursuance of the New Rights
shall be equal to the total amount that would have
been payable for the acquisition of Shares in
pursuance of the Old Rights.
12.3 In this rule the "appropriate period" means the period of six
months beginning with the time when the person making the
offer has obtained control of the company and any condition
subject to which the offer is made is satisfied;
12.4 Any reference in rules 8 to 13 and rules 15 and 16 to
"option", "shares", "company" or "board" shall, in its
application to any new rights, be deemed a reference to the
new rights, the shares to which the new rights relate, the
company in whose capital such shares are comprised or the
board as defined in rule 1 but in relation to the acquiring
company.
12.5 Rule 12.1 Above is included in the plan by virtue of paragraph
15 of schedule 9.
12.6 If new rights shall be granted to an option holder by
reference to any relevant event, rule 11.1 Above shall cease
to apply by reference to that relevant event (but without
prejudice to their application by reference to any other
relevant event). Any
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option which is not exercised or released pursuant to this
rule within the appropriate period (as defined in rule 12.3
Above) following a relevant event (but not any new rights
granted by reference to that relevant event) shall lapse.
13. VARIATION OF CAPITAL
13.1 The aggregate number of shares which may be issued under the
plan may be increased to reflect a change in capitalisation of
the company, such as a stock dividend or stock split.
13.2 If, prior to the expiration of an option, the company shall
effect a subdivision or consolidation of its shares or the
payment of a stock dividend on its shares without receipt of
consideration by the company, the number of shares thereafter
subject to such option (i) in the event of an increase in the
number of outstanding shares shall be proportionately
increased, and the exercise price shall be proportionately
reduced, and (ii) in the event of a reduction in the number of
outstanding shares shall be proportionately reduced, and the
exercise price shall be proportionately increased.
13.3 No adjustments shall be made without specific prior approval
of the inland revenue.
13.4 Notice of any such adjustments shall be given to the option
holders who if required shall return their option certificates
for endorsement or replacement
14. AVAILABILITY OF AUTHORISED CAPITAL
14.1 The aggregate number of shares that may be issued (a) pursuant
the plan, (b) and pursuant to the company's obligations as
successor to xxxxxx industries, inc. Under the xxxxxx (uk)
share purchase plan approved by the xxxxxx industries, inc.
Board of directors on february 9, 2000, is 500,000 authorised
but unissued shares.
14.2 The company has made application to the new york stock
exchange in respect of the maximum number of shares issuable
under the plan and shall submit such returns or reports as may
be required by the exchange concerning the number of shares
actually allotted under the plan.
14.3 The company shall keep available sufficient authorised but
unissued shares to satisfy in full all outstanding options
granted by the company to subscribe for shares and ensure that
there are sufficient shares in issue available to satisfy any
subsisting option to acquire shares.
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14.4 At any time following the grant of an option by the company
the company may elect to satisfy its obligation to issue
shares arising from such exercise by procuring the transfer by
the trustees or any other existing shareholder or shareholders
to the option holder of the number of issued shares equal to
the number of shares in respect of which the option is
exercised and at a price equal to the exercise price and
otherwise on terms no less favourable (mutatis mutandis) to
the option holder than those which would have applied had the
company not made such election.
15. VARIATION AND TERMINATION OF PLAN
15.1 These rules may be altered by resolution of the board in any
manner and at any time subject to the following provisions:
15.1.1 in making such alteration, the Board shall have
regard to the fact that, if such an alteration is
made at a time when the Plan is approved by the
Inland Revenue under Schedule 9, the approval shall
not have effect until approved by the Inland Revenue
and approval shall therefore be sought from the
Inland Revenue as soon as possible following the
making of any alteration; and
15.1.2 no alteration may materially affect an Option Holder
as regards an Option granted prior to the alteration
being made save that this shall not prevent the issue
of Options after the date of the alteration on terms
more favourable than those Options granted prior to
that date.
15.13 The Company may by ordinary resolution of the Board
at any time resolve to terminate the Plan in which
case no further Options shall be granted but the
Subsisting Options shall not be affected by such
termination.
16. ADMINISTRATION
16.1 The plan shall be administered by the plan administration
committee established by the board, which committee shall be
authorised to approve offerings under the plan and to
interpret the plan and from time to time to adopt such rules
and regulations, consistent with the provisions of the plan,
as may be deemed advisable to carry out the plan. The decision
of such committee shall be final and binding for all purposes
with respect to any question arising under the plan.
16.2 The committee is authorised to amend the plan to benefit the
administration of the plan and make amendments to bring the
plan within the terms of schedule 9 and/or to
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obtain or maintain inland revenue approval under the
provisions of schedule 9 or any other enactment and/or to take
advantage of or to comply with any changes in existing or
proposed legislation or to obtain or maintain favourable
taxation, exchange control or regulatory treatment of the
company, any subsidiary or option holder.
17. GENERAL
17.1 In the event of any dispute or question concerning the
construction or effect of the plan the decision of the board
shall be final and conclusive subject to the concurrence of
the auditors wherever required under these rules.
17.2 In any matter in which they are required to act under the plan
the auditors shall be deemed to be acting as experts and not
as arbitrators and the arbitration acts 1950 to 1996 shall not
apply hereto.
17.3 Notwithstanding any provisions of any other of these rules the
plan shall not form part of any contract of employment of any
eligible employee and shall not confer any legal or equitable
rights (other than those constituting the options themselves)
against the company or any subsidiary nor shall the benefits
to eligible employees under the plan form any part of their
remuneration for pension or other purposes.
17.4 Ifan option holder shall cease for any reason to be an
eligible employee his rights and benefits under the plan or in
connection therewith (actual or prospective) or any loss
thereof shall not entitle him to any claim for compensation
against the company or any subsidiary.
17.5 If a person shall cease to be an eligible employee for
whatever reason he shall not be entitled to compensation for
any loss of any rights or benefits (actual or prospective)
under the plan which he might otherwise have enjoyed whether
such compensation is claimed by way of damages for unfair
dismissal, wrongful dismissal or other breach of contract or
by way of compensation for loss of office or otherwise.
17.6 The board may from time to time make and vary such regulations
(not being inconsistent with the plan) for the implementation
and administration of the plan as it thinks fit.
17.7 Option holders shall not be entitled to copies of notices and
documents sent to ordinary shareholders prior to the exercise
of an option.
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17.8 It shall be the duty of the board or the trustees (as
appropriate) to provide returns of any options granted or
exercised and to make available such further information as
may be requested from time to time by the board of the inland
revenue.
17.9 Any notice or other communication under or in connection with
the plan may be given by personal delivery or by sending the
same by post, in the case of a company to its registered
office and in the case of an individual to his last known
address, or, where he is a director or employee of a group
company either to his last known address or to the address of
the place of business at which he performs the whole or
substantially the whole of the duties of his office or
employment, and where a notice or other communication is given
by first-class post, it shall be deemed to have been received
48 hours after it was put into the post properly addressed and
stamped.
17.10 The costs of introducing and administering the plan shall be
borne by the company.
18. GOVERNING LAW
The Rules and the Plan shall in all respects be governed by the laws of
England and the English Courts shall have non exclusive jurisdiction to
hear and determine any disputes which arise or may arise in connection
with the Plan.
19. HEADINGS
The headings contained herein are for convenience only and shall not
affect the construction of the Rules.
ON BEHALF OF THE COMPANY I HEREBY DECLARE THAT THE BOARD HAS APPROVED AND
ADOPTED THESE RULES.
SIGNED: XXXXX X. XXXXX
CAPACITY: SENIOR VICE PRESIDENT, HUMAN RESOURCES
DATE: NOVEMBER 18, 2002
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