Attached files
file | filename |
---|---|
EX-31.2 - EXHIBIT 31.2 - Shire plc | dp17367_ex3102.htm |
EX-31.1 - EXHIBIT 31.1 - Shire plc | dp17367_ex3101.htm |
EX-32.1 - EXHIBIT 32.1 - Shire plc | dp17367_ex3201.htm |
EXCEL - IDEA: XBRL DOCUMENT - Shire plc | Financial_Report.xls |
10-Q - FORM 10-Q - Shire plc | dp17367_10q.htm |
EXHIBIT 10.27
THE
SHIRE PORTFOLIO SHARE PLAN
________________________________________
Directors’
approval: 7 April 2008
Shareholders’
approval: 10 April 2008
Expiry date: 28
October 2015
________________________________________
SLAUGHTER
AND MAY
One
Bunhill Row
London
EC1Y
8YY
(JZF)
502222273
As
amended to 27 April 2010
The
Shire Portfolio Share Plan
PLAN
SUMMARY
The Shire Portfolio
Share Plan has been set up to encourage the holding of shares in Shire plc (the
“Company”) by or for the
benefit of bona fide employees and former employees of the Company and its
subsidiaries.
The Plan is
intended to align the interests of selected employees of the Company with long
term shareholder value creation. Participation in the Plan is discretionary.
Under the Plan, eligible employees may be granted awards in respect of shares in
the Company. Awards granted to executive directors will be subject to a
performance target which must, in normal circumstances, be met before the award
vests. Performance targets will normally be measured over a period of not less
than three years. Special rules apply in the event of the participant’s
employment terminating early or on a change of control of the
Company.
The Plan is split
into two separate parts, which can be operated separately.
Under Part A of the
Plan, SAR Awards can be granted. A SAR Award is the right to receive shares in
the Company linked to the increase in value of a specified number of shares over
a period between one and seven years from the date of grant and, in the case of
executive directors, subject to the satisfaction of performance targets. SAR
Awards granted to executive directors and individuals who hold the position of
Executive Vice-President will normally vest three years after the date of grant,
subject to the satisfaction of performance targets in the case of executive
directors. SAR Awards granted to individuals who are not executive directors of
the Company and who do not hold the position of Executive Vice-President of the
Company will normally vest in tranches on such dates, as the Committee may
determine with the first vesting not being earlier than the first anniversary of
the Date of Grant. SAR Awards can be exercised up until the seventh anniversary
of the date of grant.
Under Part B of the
Plan, PSA Awards can be granted. A PSA Award is the right to receive a specified
number of shares between one and three years from the date of grant. In the
case of executive directors, performance targets must be satisfied before a PSA
Award vests. PSA Awards granted
to executive directors and individuals who hold the position of Executive
Vice-President will normally vest three years after the date of grant, subject
to the satisfaction of performance targets in the case of executive directors.
PSA
Awards granted to individuals who are not executive directors of the Company and
who do not hold the position of Executive Vice-President of the Company will
normally vest in tranches on such dates, as the Committee may determine with the
first vesting not being earlier than the first anniversary of the Date of Grant.
Upon vesting of the PSA Award, shares will be released to the participant
automatically without any action on the part of the participant.
It
is the Company’s intention for awards granted under the Plan to be comprised of
either or both a SAR Award and a PSA Award.
This summary of the
Plan does not form part of the rules of the Plan which apply in the event of any
inconsistency.
THE RULES OF THE SHIRE
PORTFOLIO SHARE PLAN
CONTENTS
Page
|
|||
PART
A – STOCK-SETTLED STOCK APPRECIATION RIGHTS AWARDS
|
|||
1.
|
INTERPRETATION
AND CONSTRUCTION
|
1
|
|
1.1
|
Definitions
|
1
|
|
1.2
|
Meaning of
ceasing to be employed within the Group
|
4
|
|
1.3
|
Construction
|
5
|
|
1.4
|
Governing
law
|
5
|
|
1.5
|
Administration
|
5
|
|
1.6
|
Disputes
|
5
|
|
2.
|
ELIGIBILITY
|
5
|
|
3.
|
GRANT OF SAR
AWARDS
|
6
|
|
3.1
|
Operation of
Part A of the Plan
|
6
|
|
3.2
|
Grant of SAR
Awards
|
6
|
|
3.3
|
Shares or
ADSs comprised in a SAR Award
|
7
|
|
3.4
|
Adjustment of
Performance Targets
|
7
|
|
3.5
|
Deed of grant
for SAR Awards
|
8
|
|
4.
|
INDIVIDUAL
LIMIT
|
8
|
|
5.
|
VESTING OF
SAR AWARDS
|
8
|
|
5.1
|
General
|
8
|
|
5.2
|
Vesting of
SAR Awards
|
8
|
|
5.3
|
Notification
to Participant
|
9
|
|
6.
|
EXERCISE OF
SAR AWARDS AND RELEASE OF SHARES
|
9
|
6.1
|
Exercise of
SAR Awards
|
9
|
|
6.2
|
Share Dealing
Code
|
10
|
|
6.3
|
Issue or
Transfer of Shares on exercise of a Vested SAR Award
|
10
|
|
7.
|
RESTRICTIONS
UPON VESTING
|
11
|
|
7.1
|
General
|
11
|
|
7.2
|
Lapsing of
SAR Awards
|
11
|
|
7.3
|
Cessation of
employment - general
|
11
|
|
7.4
|
Cessation of
employment - Vested SAR Awards
|
12
|
|
7.5
|
Cessation of
employment – Unvested SAR Awards
|
12
|
|
7.6
|
Death of a
Participant
|
13
|
|
8.
|
LAPSE OF SAR
AWARDS
|
13
|
|
9.
|
CHANGE IN
CONTROL AND LIQUIDATION
|
14
|
|
9.1
|
General
Offer
|
14
|
|
9.2
|
Part 18
Companies (Jersey) Law 1991
|
14
|
|
9.3
|
Article 125
Companies (Jersey) Law 1991
|
14
|
|
9.4
|
Winding-up
|
14
|
|
9.5
|
Vesting of
SAR Awards
|
14
|
|
9.6
|
Exchange of
SAR Awards
|
15
|
|
9.7
|
Overriding
Provision
|
16
|
|
|
|||
10.
|
NON-TRANSFERABILITY
OF SAR AWARDS
|
17
|
|
|
|||
11.
|
LOSS OF
OFFICE
|
17
|
|
|
|||
12.
|
VARIATION OF
CAPITAL
|
17
|
|
12.1
|
General
|
17
|
|
12.2
|
Adjustment of
SAR Awards
|
18
|
12.3
|
Notification
of adjustment
|
18
|
|
13.
|
GENERAL
|
18
|
|
13.1
|
Administration
|
18
|
|
13.2
|
Costs and
expenses
|
18
|
|
13.3
|
Power of
amendment
|
18
|
|
13.4
|
Sub
plans
|
19
|
|
13.5
|
Termination
|
19
|
|
14.
|
PLAN
LIMITS
|
19
|
|
14.1
|
General
|
19
|
|
14.2
|
Meaning of
terms used in Rule 14
|
20
|
|
14.3
|
10% in 10
years for all schemes
|
20
|
|
14.4
|
5% in 10
years for discretionary schemes
|
21
|
|
14.5
|
Life of
Plan
|
21
|
|
15.
|
NOTICES
|
21
|
|
15.1
|
To Eligible
Employees and Participants
|
21
|
|
15.2
|
To the
Company
|
22
|
|
15.3
|
To the
Trustee
|
22
|
|
SCHEDULE -
PERFORMANCE TARGET
|
23
|
PART
B – PERFORMANCE SHARE AWARDS
|
|||
1.
|
INTERPRETATION
AND CONSTRUCTION
|
24
|
|
1.1
|
Definitions
|
24
|
|
1.2
|
Meaning of
ceasing to be employed within the Group
|
27
|
|
1.3
|
Construction
|
27
|
|
1.4
|
Governing
law
|
28
|
|
1.5
|
Administration
|
28
|
|
1.6
|
Disputes
|
28
|
|
2.
|
ELIGIBILITY
|
28
|
|
3.
|
GRANT OF PSA
AWARDS
|
28
|
|
3.1
|
Operation of
Part B of the Plan
|
28
|
|
3.2
|
Grant of PSA
Awards
|
29
|
|
3.3
|
Shares or
ADSs comprised in a PSA Award
|
29
|
|
3.4
|
Adjustment of
Performance Targets
|
30
|
|
3.5
|
Adjustment
for dividends
|
30
|
|
3.6
|
Deed of grant
for PSA Awards
|
31
|
|
4.
|
INDIVIDUAL
LIMIT
|
31
|
|
5.
|
VESTING OF
PSA AWARDS
|
31
|
|
5.1
|
General
|
31
|
|
5.2
|
Vesting of
Awards
|
31
|
|
5.3
|
Notification
to Participant
|
32
|
|
5.4
|
Share Dealing
Code
|
32
|
|
6.
|
RESTRICTIONS
UPON VESTING
|
32
|
|
6.1
|
General
|
32
|
6.2
|
Lapsing of
PSA Awards
|
32
|
|
6.3
|
Cessation of
employment - general
|
33
|
|
6.4
|
Cessation of
employment – Unvested PSA Awards
|
33
|
|
6.5
|
Death of a
Participant
|
34
|
|
7.
|
LAPSE OF PSA
AWARDS
|
34
|
|
8.
|
CHANGE IN
CONTROL AND LIQUIDATION
|
34
|
|
8.1
|
General
Offer
|
34
|
|
8.2
|
Part 18
Companies (Jersey) Law 1991
|
35
|
|
8.3
|
Article 125
Companies (Jersey) Law 1991
|
35
|
|
8.4
|
Winding-up
|
35
|
|
8.5
|
Vesting of
PSA Awards
|
35
|
|
8.6
|
Exchange of
PSA Awards
|
36
|
|
8.7
|
Overriding
Provision
|
37
|
|
9.
|
PROCEDURE ON
VESTING
|
37
|
|
9.1
|
Issue or
Transfer of Shares
|
37
|
|
9.2
|
Withholding
obligations
|
38
|
|
9.3
|
Provision of
Shares
|
38
|
|
|
|||
10.
|
NON-TRANSFERABILITY
OF PSA AWARDS
|
39
|
|
11.
|
LOSS OF
OFFICE
|
39
|
|
12.
|
VARIATION OF
CAPITAL
|
40
|
|
12.1
|
General
|
40
|
|
12.2
|
Adjustment of
Awards
|
40
|
|
12.3
|
Notification
of adjustment
|
40
|
|
|
|||
13.
|
GENERAL
|
40
|
13.1
|
Administration
|
40
|
|
13.2
|
Costs and
expenses
|
40
|
|
13.3
|
Power of
amendment
|
40
|
|
13.4
|
Sub
plans
|
41
|
|
13.5
|
Termination
|
41
|
|
|
|||
14.
|
PLAN
LIMITS
|
41
|
|
14.1
|
General
|
41
|
|
14.2
|
Meaning of
terms used in Rule 14
|
42
|
|
14.3
|
10% in 10
years for all schemes
|
42
|
|
14.4
|
5% in 10
years for discretionary schemes
|
43
|
|
14.5
|
Life of
Plan
|
43
|
|
|
|||
15.
|
NOTICES
|
43
|
|
15.1
|
To Eligible
Employees and Participants
|
43
|
|
15.2
|
To the
Company
|
44
|
|
15.3
|
To the
Trustee
|
44
|
|
SCHEDULE -
PERFORMANCE TARGET
|
45
|
||
APPENDIX A -
AWARDS TO CANADIAN PARTICIPANTS
|
46
|
PART
A – STOCK-SETTLED STOCK APPRECIATION RIGHTS AWARDS
1.
|
INTERPRETATION AND
CONSTRUCTION
|
1.1
|
Definitions
|
In
this Part A of the Plan, the following definitions apply:
(A)
|
“ADS” means an American
Depositary Share representing
Shares.
|
(B)
|
“Associated Company”
means, in relation to the Company (i) any company which has Control of the
Company; and (ii) any company which is under the Control of the Company or
any company referred to in (i)
|
(C)
|
The “Auditors” are the
auditors for the time being of the Company or in the event of there being
joint auditors, such one of them as the Board shall
select.
|
(D)
|
The “Board” means the board
of directors of the Company.
|
(E)
|
“Cause” means any reason
which justifies a Participant's summary
dismissal.
|
(F)
|
The “Committee” means the
Remuneration Committee of the Board or such other committee or committees
of the Board as may be appointed from time to
time.
|
(G)
|
The “Company” is Shire plc
registered in Jersey under No.
99854.
|
(H)
|
“Conditions” has the
meaning given in Rule 3.2(A) of Part
A.
|
(I)
|
“Control” has the
meaning given to it by section 840 of the Income and Corporation Taxes Act
1988.
|
(J)
|
The “Date of Grant” of a SAR
Award is the date on which it is
granted.
|
(K)
|
A “Dealing Day” is a day
on which the London Stock Exchange is open for the transaction of
business.
|
(L)
|
“Eligible Employee” is
any employee or salaried director of a member of the
Group.
|
(M)
|
“Exercise Period” means
the period which starts on the Vesting Date and ends on the 7th
anniversary of the Date of Grant, unless the Committee sets a different
period at the Date of Grant. The different period may not begin earlier
than the Vesting Date nor end later than the 10th
anniversary of the Date of Grant.
|
(N)
|
“Exercise Price” means
either:
|
(a)
|
the average
Market Value of a Share or ADS subject to the SAR Award calculated over
three business days up to and including the Date of Grant;
or
|
(b)
|
such other
price as is set by the Committee at the Date of Grant but not being less
than the Market Value of a Share or ADS, as the case may be, at the Date
of Grant.
|
(O)
|
A “Financial Year” means
the period beginning with the first day of the Company’s accounting
reference period and ending with the last day of that
period.
|
(P)
|
“Grantor” means the
Company where a SAR Award is, or is to be, granted by the Company and the
Trustee where a SAR Award is, or is to be, granted by the
Trustee.
|
(Q)
|
“Grant Period” means any
of the following:
|
(i)
|
the period of
42 days commencing on the day on which the Plan is adopted by the
Company;
|
(ii)
|
the period of
42 days commencing on the day after that on which the Company makes an
announcement of its results for the last preceding Financial Year,
half-year or other period;
|
(iii)
|
when, or
shortly after, an Eligible Employee first becomes employed by a member of
the Group;
|
(iv)
|
when, or
shortly after, an Eligible Employee is promoted to a position which
qualifies him to receive a SAR Award or an increased level of SAR
Award;
|
(v)
|
any other
time where, in the discretion of the Committee, exceptional circumstances
exist which justify the grant of SAR
Awards.
|
(R)
|
The “Group” means the
Company and its Subsidiaries and “member of the Group” is
to be construed accordingly.
|
(S)
|
The “London Stock Exchange”
means the London Stock Exchange plc or any recognised investment exchange
for the purposes of the Financial Services and Markets Act 2000 which may
take over the function of the London Stock Exchange
plc.
|
(T)
|
The “Market Value” of a Share
on any date is the closing mid-market price at which transactions in
shares take place on the London Stock Exchange on that date and the Market
Value of an ADS on any date is the closing mid-market price at which
transactions in ADSs take place on the NASDAQ on that
date.
|
(U)
|
“Part A” means Part A of
the Plan under which SAR Awards can be granted (together with any
applicable Schedule or Appendix).
|
(V)
|
A “Participant” is the
holder of a SAR Award or, where the context admits or requires, his
personal representatives.
|
2
(W)
|
The “Performance Period” in
respect of a SAR Award is a period set by the Committee at or prior to
grant of a SAR Award.
|
(X)
|
“Performance Target”
means the measure of the financial or other performance of the Company
applied in relation to any SAR Award in accordance with Rule 3.2(A) of
Part A.
|
(Y)
|
“Permitted Reason” in
relation to a Participant:
|
(i)
|
his
Retirement;
|
(ii)
|
his
ill-health, injury or disability;
|
(iii)
|
his
redundancy, within the meaning of the Employment Right Act 1996 or his job
elimination due to restructuring or a significant diminution of
duties;
|
(iv)
|
the company
by which the Participant is employed ceasing to be a member of the Group;
or
|
(v)
|
the business,
or part of the business, in which the Participant works being transferred
or sold to a person which is not a member of the
Group.
|
(Z)
|
The “Plan” means Parts A and
B of this plan (and including the Schedules and any Appendices to the
Rules) as from time to time
amended.
|
(AA)
|
“Retirement”
means
|
(i)
|
for SAR
Awards granted on or before 17th February 2010 only, retirement on or
after the Participant’s normal retirement date as specified in his
contract of employment (or if there is no such date, his 65th
birthday); or
|
(ii)
|
for any SAR
Awards, his retirement from employment with the consent of the
Company.
|
(BB)
|
The “Rules” means the rules
of this Plan.
|
(CC)
|
“SAR Award” is a right
to acquire Shares or ADSs granted in accordance with Part A of the
Rules.
|
(DD)
|
“Service Factor” means
the fraction of which:
|
(i)
|
the numerator
is the number of complete weeks in the relevant period (defined below)
during which the Participant was employed (or would have been employed had
he remained in employment throughout his notice period) within the Group
(in any case where Rule 7 of Part A applies) or prior to the relevant date
(in any case where Rule 9 of Part A applies);
and
|
3
(ii)
|
the denominator is the total
number of complete weeks in the relevant
period;
|
and for these
purposes, the relevant
period is, as the Committee may decide, either the Performance Period or
the period which starts with the Date of Grant and ends with the end of the
Performance Period, but ignoring any provision in the Rules which deems the
Performance Period to have ended earlier than it would otherwise have done but
for those Rules. Where there is no Performance Period, the relevant period shall
be the period which starts with the Date of Grant and ends with the Vesting
Date, ignoring any provision in the Rules which deems the Vesting Date to have
taken place earlier than it would have under Rule 5.2.
(EE)
|
“Shares” means
fully-paid ordinary shares in the capital of the
Company.
|
(FF)
|
“Subsidiary” has the
meaning given to it by section 1159 of the Companies Act
2006.
|
(GG)
|
The “Trust” means any trust
for the benefit of, inter alia, employees of the Group from time to time
designated by the Committee.
|
(HH)
|
The “Trustee” means the
trustee or trustees for the time being of the Trust or, if there is more
than one, the trustee or trustees of the Trust nominated by the
Committee.
|
(II)
|
“UK Listing Authority”
means the Financial Services Authority acting in its capacity as the competent
authority for the purposes of Part 6 of the Financial Services and Markets
Act 2000 or such other person as is from time to time appointed to be the
competent authority for the purposes of that
Act.
|
(JJ)
|
“Unvested SAR Award”
means any SAR Award or (as the case may be) that part of a SAR Award which
is not a Vested SAR Award.
|
(KK)
|
“Vesting Date” means in
relation to any SAR Award, the date (or dates) on which such SAR Award
vests in accordance with Rule 5.2 or otherwise in accordance with Part A
of the Rules.
|
(LL)
|
“Vested SAR Award”
means, subject to the Rules, a SAR Award, or (as the case may be) that part
of a SAR Award which has vested in accordance with Rule 5.2 or otherwise
in accordance with Part A of the
Rules.
|
1.2
|
Meaning
of ceasing to be employed within the
Group
|
(A)
|
For the
purposes of Part A of the Rules, but subject to (B), a Participant is to
be treated as ceasing to be employed within the Group when he is no longer
employed by any company which is a member of the Group. For the avoidance
of doubt, a Participant will cease to be employed by a member of the Group
if the company by which he is employed ceases to be a member of the
Group.
|
(B)
|
If a
Participant is away from work:
|
4
(i)
|
in
circumstances where he has a contractual or statutory right to return to
work at the end of the period of leave;
or
|
(ii)
|
because of a
period of leave approved by the Committee for this
purpose,
|
that Participant
will be treated for the purposes of Part A of the Rules as continuing to be
employed within the Group (whether or not he is) unless and until the Committee
is satisfied that there is no longer any reasonable expectation that the
Participant will return to work.
1.3
|
Construction
|
(A)
|
Where the
context so admits, any reference in Part A of the Plan to the singular
includes the plural and vice versa.
|
(B)
|
Where the
context so admits, any reference in Part A of the Plan to the masculine
includes the feminine.
|
(C)
|
Any reference
in Part A of the Plan to any enactment is, unless otherwise stated, to the
relevant United Kingdom legislation and includes a reference to that
enactment as from time to time modified, extended or
re-enacted.
|
(D)
|
The headings
to the Rules are for reference purposes only and shall not affect the
meaning or construction of the
Rules.
|
1.4
|
Governing
law
|
Part A of the Plan
and any SAR Award granted under it is governed by, and is to be construed in
accordance with, English law.
1.5
|
Administration
|
Unless the Rules
say otherwise, the Committee will administer Part A of the Plan.
1.6
|
Disputes
|
The Committee’s
decision on the construction of Part A of the Rules and on any disputes arising
under Part A of the Plan is final and binding on all persons.
2.
|
ELIGIBILITY
|
2.1
|
The persons
who are eligible to receive SAR Awards are such Eligible Employees as are
selected by the Committee, in its discretion, to participate in the
Plan.
|
5
3.
|
GRANT OF SAR
AWARDS
|
3.1
|
Operation
of Part A of the Plan
|
(A)
|
The Committee
shall decide whether or not to operate Part A of the Plan on any occasion
and whether SAR Awards should be made by the Company or by the
Trustee.
|
(B)
|
A SAR Award
must be granted during the Grant
Period.
|
(C)
|
The Committee
must ensure that the limits in Rule 4 and Rule 14 are not
exceeded.
|
(D)
|
The Committee
shall ensure that Part A of the Plan is not operated at any time, or in
any circumstances, when to do so would contravene the provisions of the
Criminal Justice Act 1993, the Company’s securities dealing code, the
Listing Rules of the UK Listing Authority or any other applicable laws or
regulations.
|
(E)
|
No SAR Award
shall be granted after 28 October
2015.
|
(F)
|
SAR Awards
granted under Part A of the Plan will not be
pensionable.
|
3.2
|
Grant
of SAR Awards
|
(A)
|
The Committee
shall have absolute discretion to determine whether conditions shall apply
before a SAR Award may vest. Where the Committee determines that
conditions shall apply, those conditions shall
include:
|
(i)
|
a measure or
measures of the financial or other performance of the Group (the “Performance Target”);
and
|
(ii)
|
such
additional conditions (if any) as the Committee may determine,
|
(together the
“Conditions”).
Details of the
Conditions as initially adopted are set out in the schedule to Part A of these
Rules and the Conditions set out in this schedule shall apply where the
Committee does not specify any alternative Conditions.
(B)
|
If SAR Awards
are to be granted by the Company and the Committee determines that
Conditions should apply to such SAR Award, the Company will grant a SAR
Award to each relevant Eligible Employee on such
Conditions.
|
(C)
|
If SAR Awards
are to be granted by the Trustee, the Committee must notify the Trustee
of:
|
(i)
|
the Eligible
Employees whom it recommends be granted SAR Awards;
and
|
6
(ii)
|
the
Conditions which the Committee recommends should be attached to SAR Awards
and the applicable Performance Period (where
applicable),
|
and, if the Trustee
agrees to Part A of the Plan being operated in relation to that period and those
individuals, the Trustee will grant a SAR Award to each such Eligible Employee
on such terms.
(D)
|
Appendices to
the Plan may set out special terms applying to Eligible Employees or
Participants in any jurisdiction.
|
(E)
|
Each Eligible
Employee who receives a SAR Award will be given written notice of the SAR
Award and of any Conditions applying to that
Award.
|
3.3
|
Shares
or ADSs comprised in a SAR Award
|
Participants shall
be notified as to whether the SAR Awards they receive are to be in respect of
Shares or ADSs.
3.4
|
Adjustment
of Performance Targets
|
(A)
|
In the
circumstances mentioned in Rule 3.4(E), the Committee may change or waive
the Performance Target and/or the additional Conditions (if any) imposed
under Rule 3.2(A).
|
(B)
|
The power to
change includes both the power to adjust and also the power to impose a
replacement Performance Target and/or replacement additional Conditions
and to amend the companies in any comparator
group.
|
(C)
|
The
Committee's power is, however, restricted in that the change must not have
the effect of making the Performance Target or the additional Conditions
either materially easier or materially more difficult to achieve, in the
opinion of the Committee, than it was or they were immediately before the
circumstance in question.
|
(D)
|
Where the
Committee exercises its power to waive the Performance Target or the
additional Conditions, the Committee is not required to impose a
replacement Performance Target and/or replacement additional
Conditions.
|
(E)
|
The
circumstances are:
|
(i)
|
any variation
of the Company’s capital,
|
(ii)
|
such
circumstances as were specified when the SAR Award was granted,
and
|
(iii)
|
any event or
events as a result of which the Committee considers it fair and reasonable
to change or waive the Performance Target and/or the additional Conditions
or to amend the companies in any comparator
group.
|
7
(F)
|
In any case
where the Grantor is the Trustee, the Committee must tell the Trustee
before setting or changing or waiving the Performance Target or other
Conditions.
|
3.5
|
Deed
of grant for SAR Awards
|
There shall be no
consideration for the grant of a SAR Award. On the Date of Grant, the Grantor
must execute a deed of grant in favour of each recipient of a SAR Award. The
deed of grant may be in favour of more than one recipient. If so, it will be
retained by the Grantor but the Grantor must make it (or the relevant part of
it) available for inspection by each recipient. As soon as practicable after the
Date of Grant, the Company must procure that each recipient is given written
details of his SAR Award. The deed of grant and the written details given to
each recipient must state the full terms of the Performance Target (if any) and
any other Conditions applicable to the SAR Award.
4.
|
INDIVIDUAL
LIMIT
|
(A)
|
Except in
circumstances determined by the Committee to be exceptional, each SAR
Award must be limited and must therefore take effect, so that the total
Market Value of the Shares, or ADSs as the case may be, under a SAR Award,
in respect of each Participant does not exceed six times the individual’s
pay (see (B)) annually.
|
(B)
|
The pay of a Participant on
any date is the annual rate of his basic pay (excluding bonuses,
commissions and benefits in kind) from all members of the Group on that
date.
|
5.
|
VESTING
OF SAR AWARDS
|
5.1
|
General
|
The number of
Shares or ADSs in respect of which a SAR Award vests is to be determined by the
Committee (with the consent of the Trustee, if the Trustee is the Grantor) in
accordance with the following provisions of this Rule 5.
5.2
|
Vesting
of SAR Awards
|
(A)
|
Subject to
Rules 5.2(B) and (C), SAR Awards will vest on
the:
|
(i)
|
third
anniversary of the Date of Grant in the case of Participants who hold SAR
Awards which are not subject to a Performance Target and/or Conditions;
and
|
(ii)
|
third
anniversary of the Date of Grant if the Committee determines that the
Performance Target and any other Conditions imposed under Rule 3.2(A) have
been satisfied and that, in the opinion of the Committee, the underlying
performance of the Company is sufficient to justify the vesting of a SAR
Award in the case of Participants who hold SAR Awards which are subject to
a Performance Target and/or
Conditions,
|
8
unless they have
previously lapsed in accordance with the Rules of Part A of the Plan. In the
case of SAR Awards which are subject to a Performance Target and/or Conditions,
if the Performance Target or any other Conditions are not met or if the
Committee determines that the underlying performance of the Company is not
sufficient to justify vesting, the SAR Awards will lapse.
(B)
|
If the
Committee so determines on or prior to the Date of Grant, SAR Awards for
individuals who are not directors of the Company and who do not hold the
position of Executive Vice-President of the Company may vest on such other
date, or may vest in tranches on such other dates, as the Committee may
determine provided that the first vesting may not be earlier than the
first anniversary of the Date of Grant. Where a SAR Award vests in
tranches on more than one date, the Committee shall determine the
proportion of the SAR Award which vests on each such
date.
|
(C)
|
If the
Participant’s SAR Award does not vest, or does not vest in full, on the
specified date then the SAR Award or, as the case may be, the unvested
portion of it, shall lapse.
|
5.3
|
Notification
to Participant
|
The Committee shall
notify Participants as soon as reasonably practicable following vesting of the
percentage (if any) of a SAR Award which has vested.
6.
|
EXERCISE OF SAR AWARDS AND
RELEASE OF SHARES
|
6.1
|
Exercise
of SAR Awards
|
(A)
|
The
Participant may exercise his Vested SAR Award during the Exercise Period
or at such other times as the Rules permit. Where a SAR Award is
exercisable, it may be exercised in whole or in part from time to
time.
|
(B)
|
To exercise a
SAR Award, a Participant must give notice to the Company or such other
person as the Committee may direct. As soon as reasonably practicable
after receipt of the notice, the Company must tell the Trustee if the
Trustee is the Grantor. The notice of exercise must be in such form, and
be accompanied by such other documents, as the Committee may
decide.
|
(C)
|
Unless the
Company and the Participant agree a later date, the date of exercise of a
Vested SAR Award will be the earlier
of:
|
(i)
|
the second
Dealing Day after the date on which the notice of exercise, complete in
all material respects, is received by the Company (or by such other person
as the Committee may have directed);
and
|
(ii)
|
the date on
which the Committee approves the exercise of the SAR Award, the notice of
exercise, complete in all respects, having been received by the Company
(or by such other person as the Committee may have
directed).
|
9
6.2
|
Share
Dealing Code
|
(A)
|
At any time
when the buying or selling of securities by a director or employee of the
Company would breach the Company’s code of practice on dealings in shares
and other securities, a Participant may not exercise a Vested SAR
Award.
|
(B)
|
The
restriction in (A) applies even if the Participant is not at that time
forbidden by the code from buying or selling securities. The restriction
does not, however, apply if permission is
given:
|
(i)
|
in the case
of a Participant who is bound by that code in accordance with the
procedures laid down in the code;
or
|
(ii)
|
in the case
of any other Participant, by such person as the Committee may nominate for
this purpose.
|
6.3
|
Issue
or Transfer of Shares on exercise of a Vested SAR
Award
|
(A)
|
Subject to
(B) below, within 30 days of the date of exercise of a Vested SAR Award
the Company shall:
|
(i)
|
issue,
re-issue from treasury, or procure the transfer of;
or
|
(ii)
|
(where the
SAR Award was granted by the Trustee), the Trustee will
transfer,
|
to
the Participant (or at the Participant’s direction) a number (N) of Shares (or
ADSs) calculated according to the following formula:
N
= (MV – EP) X
C
MV
where MV is the
Market Value of a Share (or as the case may be, an ADS) on such date as the
Committee may select falling within a period of 30 days starting with the date
on which the Vested SAR Award is exercised;
EP
is the Exercise Price; and
C
is the number of Vested Shares (or ADSs) in respect of which the SAR Award is
exercised.
(B)
|
The
obligation under (A) is subject to:
|
(i)
|
any necessary
consents or approvals as may be required by any competent authority having
first been obtained and, in the case of ADSs, to the provisions of the
deposit arrangement between the Company and the depositary bank for the
Company’s ADS programme;
|
10
(ii)
|
if the
Trustee is unable to transfer Shares or ADSs to the Participants whether
due to it holding insufficient Shares or ADSs or other assets to enable it
to meet such SAR Award or otherwise; or any such transfer would be
unlawful in any relevant jurisdiction; or in making such a transfer the
Trustee would be in breach of its duties under the Trust, the obligations
of the Trustee under the Plan and the SAR Award shall
lapse.
|
(C)
|
If the
obligations of the Trustee lapse under (B), the Company shall procure that
any Shares or ADSs not so transferred by the Trustee to which the
Participant is entitled under the Rules (ignoring Rule 6.3(B)) are issued
by the Company or are transferred to the relevant Participant, either by
the Trustee or by some other person, as soon as reasonably
practicable.
|
(D)
|
Where a
Participant is liable to tax, duties or other amounts on the exercise of a
Vested SAR Award and the Participant’s employer or former employer is
liable to make a payment to the appropriate authorities on account of that
liability:
|
(i)
|
on the
exercise of a Vested SAR Award the Company or the Trustee will sell on
behalf of the Participant sufficient Shares or ADSs issued or transferred
to the Participant so that the net proceeds of sale equal the minimum
payment which the employer or former employer is required to pay to the
appropriate authorities on behalf of the Participant. Where such Shares or
ADSs are sold by the Trustee, the Trustee will account to the employer or
former employer for the net proceeds of sale. The Company will procure
that an amount equal to those net proceeds is remitted to the appropriate
authorities on behalf of the
Participant;
|
(ii)
|
where it is
not possible for the Company or the Trustee to act in the way described in
(i) above, or where the Participant so elects, the Participant must make
alternative arrangements for the payment of the amount due to the
appropriate authorities on the exercise of a Vested SAR Award to the
satisfaction of the Participant’s employer or former
employer.
|
7.
|
RESTRICTIONS UPON
VESTING
|
7.1
|
General
|
This Rule 7
overrides the other Rules in this Part A.
7.2
|
Lapsing
of SAR Awards
|
If
a SAR Award lapses under any Rule, it will lapse for all purposes and will not
vest.
7.3
|
Cessation
of employment - general
|
(A)
|
Unless any of
the following provisions apply, if a Participant’s employment within the
Group ends for any reason whatsoever, his SAR Award will lapse on the date
on which
|
11
his employment ends
unless the Committee determines otherwise, in its absolute
discretion.
(B)
|
If all of the
following conditions are satisfied:
|
(i)
|
a Participant
ceases to be employed within the
Group;
|
(ii)
|
but for this
Rule, his SAR Award would lapse (in whole or in part) on his employment
ending; and
|
(iii)
|
under the
laws of the country in which the Participant works or lives or to which he
is subject, such lapsing is unlawful or may render the Participant’s
employer liable to some
disadvantage,
|
the Committee may
take such action as it considers appropriate (to the minimum extent necessary to
comply with those laws or to ensure that the employer is not liable to that
disadvantage) including (without limitation) deciding that the SAR Award will
become a Vested SAR Award.
7.4
|
Cessation
of employment - Vested SAR Awards
|
(A)
|
This Rule
applies if a Participant's employment within the Group ends at a time when
he holds a Vested SAR Award and his employment ends for a reason other
than Cause or death.
|
(B)
|
In these
circumstances, the Participant may exercise his Vested SAR Award in
accordance with Rule 6.1 during the period of 12 months starting with the
date of cessation of employment or such shorter period as the Committee
may decide.
|
7.5
|
Cessation
of employment – Unvested SAR Awards
|
(A)
|
This Rule
applies if a Participant’s employment within the Group ends at a time when
he holds an Unvested SAR Award and his employment
ends:
|
(i)
|
for a
Permitted Reason; or
|
(ii)
|
for any
reason other than a Permitted Reason or death and the Committee, in its
absolute discretion, decides that this Rule will apply in relation to that
SAR Award.
|
(B)
|
Subject to
(C), the Participant’s SAR Award shall become a Vested SAR Award (if at
all) in respect of the number of Shares or ADSs determined in accordance
with Rule 5.1 by applying that Rule, as the Committee may decide,
either:
|
(i)
|
in the case
of SAR Awards with a Performance Target and/or Conditions by deeming the
Performance Period to have ended on the date on which
the
|
12
Participant’s
employment ends or on some other date before the end of the Performance Period;
or
(ii)
|
in respect of
SAR Awards where there is no Performance Target or other Conditions, at
the date on which the Participant’s employment
ends.
|
If, and to the
extent that a SAR Award does not become a Vested SAR Award, it will
lapse.
(C)
|
The number of
Shares or ADSs in respect of which the SAR Award may become a Vested SAR
Award will be reduced by the Service Factor, unless the Committee, in its
absolute discretion, determines
otherwise.
|
(D)
|
Where a SAR
Award becomes a Vested SAR Award, a Participant may exercise his Vested
SAR Award in accordance with Rule 6.1 during the period of 12 months
starting on the date of cessation of employment. To the extent that a
Vested SAR Award is not exercised during this period, it will
lapse.
|
7.6
|
Death
of a Participant
|
(A)
|
If a
Participant dies holding an Unvested SAR Award, the SAR Award will become
a Vested SAR Award on the date of death and the number of Shares or ADSs
in respect of which the SAR Award may become a Vested SAR Award will be
reduced by the Service Factor, unless the Committee, in its absolute
discretion, determines otherwise.
|
(B)
|
In respect of
SAR Awards with a Performance Target and/or Conditions, they will cease to
apply upon the death of a
Participant.
|
(C)
|
Where a SAR
Award becomes a Vested SAR Award, the personal representative may exercise
the Vested SAR Award in accordance with Rule 6.1 during the period of 12
months starting on the date of death. To the extent that a Vested SAR
Award is not exercised during this period, it will
lapse.
|
(D)
|
If, and to
the extent, that a SAR Award does not become a Vested SAR Award, it will
lapse.
|
(E)
|
If a
Participant dies holding a Vested SAR Award, the personal representative
may exercise the Vested SAR Award in accordance with Rule 6.1 during the
period of 12 months starting on the date of death. To the extent that a
Vested SAR Award is not exercised during this period, it will
lapse.
|
8.
|
LAPSE
OF SAR AWARDS
|
SAR Awards shall
lapse upon the occurrence of the earliest of the following events:
(i)
|
the seventh
anniversary of the Date of Grant;
|
13
(ii)
|
in accordance
with Rule 5;
|
(iii)
|
the expiry of
any of the periods specified in Rule
7;
|
(iv)
|
in accordance
with Rule 9.
|
9.
|
CHANGE
IN CONTROL AND LIQUIDATION
|
9.1
|
General
Offer
|
Subject to Rule
9.2, if any person obtains Control of the Company as a result of making
either:
(i)
|
a general
offer to acquire the whole of the issued ordinary share capital of the
Company (which is made on a condition that if it is satisfied the person
making the offer will have Control of the Company);
or
|
(ii)
|
a general
offer to acquire all the shares in the Company which are of the same class
as the Shares,
|
then subject to
Rules 9.6 and 9.7, SAR Awards will vest if and to the extent provided in Rule
9.5.
For the purposes of
this Rule 9.1, a person shall be deemed to have obtained Control of the Company
if he and others acting in concert with him have together obtained Control of
it.
9.2
|
Part
18 Companies (Jersey) Law 1991
|
If
any person becomes bound or entitled to acquire Shares in the Company under Part
18 of the Companies (Jersey) Law 1991 then, subject to Rules 9.6 and 9.7, SAR
Awards will vest if and to the extent provided in Rule 9.5.
9.3
|
Article
125 Companies (Jersey) Law 1991
|
If
under Article 125 of the Companies (Jersey) Law 1991 the court sanctions a
compromise or arrangement between the Company and its members then, subject to
Rules 9.6 and 9.7, SAR Awards will vest if and to the extent provided in Rule
9.5.
9.4
|
Winding-up
|
All SAR Awards will
lapse when an effective resolution is passed or an order is made for the
winding-up of the Company, unless the Committee determines
otherwise.
9.5
|
Vesting
of SAR Awards
|
(A)
|
In the
circumstances referred to in Rules 9.1 to 9.3, if the Participant has an
Unvested SAR Award, then it will become a Vested SAR Award, subject, where
a Performance Target and/or Conditions apply, also to Rule 9.5(B), as
follows:
|
14
(i)
|
where one
year or less has elapsed since the Date of Grant, in respect of one-third
of the number of Shares or ADSs subject to the SAR Award;
or
|
(ii)
|
where between
one and two years have elapsed since the Date of Grant, in respect of
two-thirds of the number of Shares or ADSs subject to the SAR Award;
or
|
(iii)
|
where between
two and three years have elapsed since the Date of Grant, in respect of
the full number of Shares or ADSs subject to the SAR
Award
|
(B)
|
In respect of
SAR Awards with a Performance Target and/or Conditions, unless the
Committee in its absolute discretion determines otherwise, the SAR Award
will only become a Vested SAR Award to the extent that the Committee
determines that the Performance Target and any other Conditions imposed
under Rule 3.2(A) of Part A have been satisfied on the basis that the
Performance Period is deemed to have ended on the date of the event
referred to in Rules 9.1 to 9.3. Any pro-rating required by Rule 9.5(A)
will apply to reduce the Vested SAR Award determined under this Rule
9.5(B).
|
(C)
|
To the extent
that a SAR Award does not become a Vested SAR Award in accordance with
this Rule 9.5, subject to Rule 9.6, it shall
lapse.
|
(D)
|
Where a SAR
Award becomes a Vested SAR Award or where a Participant already holds a
Vested SAR Award, a Participant may exercise the Vested SAR Award in
accordance with Rule 6.1 during the appropriate period (see (E)). To the
extent that a Vested SAR Award is not exercised during the appropriate
period, it will lapse.
|
(E)
|
The appropriate period
is:
|
(i)
|
in a case
falling within Rule 9.1, twelve months beginning with the time when the
acquiring company obtains Control of the Company and any condition subject
to which the offer is made is satisfied or
waived;
|
(ii)
|
in a case
falling within Rule 9.2, the period during which the acquiring company
remains so bound or entitled; and
|
(iii)
|
in a case
falling within Rule 9.3, twelve months beginning with the date on which
the compromise or arrangement is sanctioned by the
court.
|
9.6
|
Exchange
of SAR Awards
|
(A)
|
In the
circumstances referred to in Rules 9.1 to 9.3, if a company obtains
Control of the Company a Participant may, if the acquiring company so
agrees and within the Relevant Period, release his SAR Award (the old award) in
consideration of the grant to him of an award over shares in the acquiring
company or a member of the acquiring company’s group (the new
award).
|
15
(B)
|
In this Rule
9.6 “Relevant
Period” means:
|
(i)
|
in a case
falling within Rule 9.1, six months beginning with the time when the
acquiring company obtains Control of the Company and any condition subject
to which the offer is made is satisfied or
waived;
|
(ii)
|
in a case
falling within Rule 9.2, the period during which the acquiring company
remains so bound or entitled; and
|
(iii)
|
in a case
falling within Rule 9.3, six months beginning with the time when the court
sanctions the compromise or
arrangement.
|
(C)
|
If a
Participant is granted a new award under Rule
9.6:
|
(i)
|
the new award
will vest in the same way as the old award and will vest on the first date
on which the old award could have become a Vested SAR
Award;
|
(ii)
|
the Rules
will apply to the new award as if references to Shares were references to
the shares in respect of which the new award is
granted;
|
(iii)
|
the Rules
will apply to the new award as if references to the Company (including any
such references as occur in expressions which are defined in Rule 1.1 and
are used in those Rules) were references to the company in respect of
whose shares the new award is
granted;
|
(iv)
|
the Rules
will otherwise apply with such adjustments as the Committee may decide;
and
|
(v)
|
the existing
Performance Target and/or Conditions shall continue to apply to the new
award, unless the Committee determines that a replacement Performance
Target and/or Conditions should
apply.
|
(D)
|
If a
Participant’s old award is an Unvested SAR Award, the Committee may
determine that the Participant will be deemed to have agreed to the
release of his old award in return for the grant of a new award under Rule
9.6.
|
(E)
|
Where this
Rule 9.6 applies and a Participant agrees to exchange his SAR Award for an
award over shares in the acquiring company (or a member of the acquiring
company’s group), his SAR Award shall not
vest.
|
9.7
|
Overriding
Provision
|
If:
(i)
|
there occurs
an arrangement as a result of which the Company will be under the Control
of another company; and
|
16
(ii)
|
either:
|
(a)
|
the persons
who will own shares in the acquiring company immediately after the
arrangement will be substantially the same as the persons who own shares
in the Company immediately before the arrangement;
or
|
(b)
|
in relation
to SAR Awards granted after 17 February 2010, the Committee determines
that this provision should apply;
and
|
(iii)
|
Participants
are to be offered replacement awards which satisfy the requirements for a
new award set out in Rule 9.6,
|
then,
notwithstanding the previous provisions of this Rule 9, Unvested SAR Awards
shall not become Vested SAR Awards as provided for in this Rule 9. To the extent
that Participants do not agree to exchange their old awards for new awards, they
will lapse unless the Committee determines otherwise, in its absolute
discretion.
10.
|
NON-TRANSFERABILITY
OF SAR AWARDS
|
(A)
|
A SAR Award
is personal to the Participant and the Participant’s personal
representatives.
|
(B)
|
If a
Participant transfers, assigns, charges, encumbers or otherwise alienates
a SAR Award or creates in favour of any third party any interest therein
or, in any case, attempts so to do, or a bankruptcy order is made in
respect of the Participant (or any similar event occurs under the laws of
any other country), the SAR Award shall
lapse.
|
11.
|
LOSS
OF OFFICE
|
(A)
|
The
participation in Part A of the Plan by a Participant is a matter entirely
separate from, and shall not affect, the Participant’s pension rights and
terms of employment.
|
(B)
|
In particular
(but without limitation), if a Participant for any reason whatsoever
ceases to be employed by a member of the Group (whether or not such
cessation involves breach, or alleged breach, of contract by the Company)
or to be entitled to receive a SAR Award or Vested SAR Award, the
Participant is not entitled to any rights or benefits under the Plan save
as specifically provided elsewhere in these Rules and is not entitled to
any compensation by reference to the rights granted to, or the benefits
capable of being received by, the Participant under Part A of this Plan or
for any loss or diminution in value in such rights or
benefits.
|
12.
|
VARIATION
OF CAPITAL
|
12.1
|
General
|
This Rule 12
applies if there is a variation in the share capital of the Company or in such
other circumstances as the Committee considers appropriate.
17
12.2
|
Adjustment of SAR
Awards1
|
(A)
|
Subject to
the rest of this Rule 12, the Committee shall adjust each SAR Award in
such manner as it decides to be appropriate, with the consent of the
Trustee where the Grantor is the Trustee. The Committee’s decision will be
final.
|
(B)
|
For the
avoidance of doubt, the Committee shall adjust each SAR Award which has
vested but has not yet been exercised or SAR Award which has been
exercised but in respect of which Shares or ADSs have not yet been issued
or transferred in a manner which is equitable to SAR Award
holders.
|
(C)
|
The Committee
shall determine how such adjustment shall be carried out. The Committee’s
decision shall be final and binding on each
Participant.
|
12.3
|
Notification
of adjustment
|
The Grantor must
notify each Participant of any adjustment to a SAR Award as soon as practicable
after the decision.
13.
|
GENERAL
|
13.1
|
Administration
|
(A)
|
Save as
otherwise provided in the Rules of Part A, the Committee shall administer
Part A of the Plan.
|
(B)
|
The Committee
may from time to time make and amend such regulations for the
implementation and administration of Part A of the Plan as it thinks
fit.
|
13.2
|
Costs
and expenses
|
The costs of the
preparation and operation of Part A of the Plan shall be borne by the Company
and the Subsidiaries in such proportions as the Committee from time to time
determines.
13.3
|
Power
of amendment
|
(A)
|
The Committee
may at any time and from time to time amend Part A of the Plan in any
respect provided that:
|
(i)
|
subject to
Rule 13.3(B), no amendment may be made to the advantage of Eligible
Employees or Participants to any provision of the Rules without the prior
approval of the Company in general meeting,
and
|
1
|
Rule 12.2(B)
and (C) amended by resolution on 23 June 2008, pursuant to a resolution of
the Implementation Committee dated 15 April
2008.
|
18
(ii)
|
no amendment
shall be made which would affect adversely any of the subsisting rights of
a Participant except either with the Participant’s consent in writing or
the consent of the majority of the Participants affected by the amendment
or addition.
|
(B)
|
Notwithstanding
the limitation contained in Rule 13.3(A), the Committee may without the
prior approval of the Company in general
meeting:
|
(i)
|
amend Part A
of the Plan in order to take account of any amendments to any applicable
legislation or to obtain or maintain favourable tax, exchange control or
regulatory treatment for Participants or any member of the Group;
or
|
(ii)
|
make minor
amendments to Part A of the Plan to benefit its
administration.
|
(C)
|
The Committee
must give written notice to all Participants of any amendment made in
accordance with this Rule 13.3 which affects their rights in any material
respect.
|
13.4
|
Sub
plans
|
In
exercising its powers of amendment, the Committee may create sub plans or
schedules to Part A of the Plan, as necessary, so as to be able to operate Part
A of the Plan in jurisdictions other than the United Kingdom.
13.5
|
Termination
|
The Committee may
at any time suspend or terminate the operation of Part A of the Plan and in such
event no further SAR Awards will be made for the time being or, as the case may
be, permanently but in all other respects the provisions of Part A of the Plan
shall remain in force.
14.
|
PLAN
LIMITS
|
14.1
|
General
|
The Committee must
make sure that the nominal amount of Shares in respect of which SAR Awards are
granted on any date does not exceed either of the limits set out in Rule 14.3 or
14.4. The full number of Shares in respect of which SAR Awards are granted will
count towards the limits set out in Rule 14.3 and 14.4.
Where SAR Awards
are granted on the basis that the number of Shares or ADSs to which the SAR
Award relates may be increased, depending upon achievement of Performance
Targets, the maximum number of Shares to which the SAR Award may relate, if
Performance Targets are achieved in full, will count towards the limits set out
in Rule 14.3 and 14.4.
Where Vested SAR
Awards are exercised, only those Shares which are issued in accordance with Rule
6.3 shall count towards these limits.
19
14.2
|
Meaning
of terms used in Rule 14
|
In
this Rule 14:
(i)
|
allocate means the issue
of new Shares or the transfer of treasury shares in satisfaction of a
person’s rights under an award;
|
(ii)
|
an award means any option
or other right to acquire or receive Shares whether conditional or
unconditional and whether or not for
payment;
|
(iii)
|
a discretionary scheme is
a scheme in which those taking part are senior employees and directors
chosen at the discretion of the body administering the
scheme;
|
(iv)
|
an employee share scheme
means any scheme for employees of the Group which has been approved by the
Company in general meeting;
|
(v)
|
equity share capital has
the same meaning as in section 548 of the Companies Act 2006 but, for the
avoidance of doubt, will include any treasury
shares;
|
(vi)
|
no account
will be taken of Shares acquired by an employee or former employee (or the
personal representatives of such a person) where the Shares are acquired
for a price equal to their Market Value at or about the date of
acquisition and the cost of those Shares is borne by the employee or
former employee (or his estate);
|
(vii)
|
subject to
(viii), no account will be taken of an award if, and to the extent that,
the Committee considers that it will be satisfied by the transfer of
existing Shares other than treasury shares;
and
|
(viii)
|
any Shares
allocated to the trustee of any trust which were used to satisfy awards
granted under an employee share scheme must be treated as having been
allocated in respect of those awards unless the Shares were acquired by
the trustee pursuant to a rights issue or other opportunity offered to the
trustee in respect of Shares other than Shares previously allocated to
it.
|
14.3
|
10%
in 10 years for all schemes
|
The limit for this
Rule is A minus B where A is 10% of the nominal amount of the Company’s equity
share capital on the date before the Date of Grant, and B is the total nominal
amount of the following:
(i)
|
Shares
allocated in respect of awards granted within the previous 10 years under
any employee share scheme,
|
(ii)
|
Shares
remaining to be allocated in respect of awards granted on the same date or
within the previous 10 years under any employee share scheme,
and
|
20
(iii)
|
Shares
allocated on the same date or within the previous 10 years under any
employee share scheme otherwise than in respect of an
award.
|
Shares in Shire
Biopharmaceuticals Holdings or in Shire Pharmaceuticals Group issued or
treasury shares reissued under share plans of Shire
Biopharmaceuticals Holdings or Shire Pharmaceuticals Group count towards
the limits set out in Rule 14.3 as if they were shares in the
Company.
14.4
|
5%
in 10 years for discretionary
schemes
|
The limit for this
Rule is A minus B where A is 5% of the nominal amount of the Company’s equity
share capital on the day before the Date of Grant, and B is the total nominal
amount of the following:
(i)
|
Shares
allocated in respect of awards granted within the previous 10 years under
any discretionary employee share
scheme,
|
(ii)
|
Shares
remaining to be allocated in respect of awards granted on the same date or
within the previous 10 years under any discretionary employee share
scheme, and
|
(iii)
|
Shares
allocated on the same date or within the previous 10 years under any
discretionary employee share scheme otherwise than in respect of an
award.
|
Shares in Shire
Biopharmaceuticals Holdings or in Shire Pharmaceuticals Group issued or
treasury shares reissued under share plans of Shire
Biopharmaceuticals Holdings or Shire Pharmaceuticals Group count towards
the limits set out in Rule 14.4 as if they were shares in the
Company.
14.5
|
Life
of Plan
|
No
SAR Awards may be granted more than 10 years after shareholders of the Company
approve Part A of the Plan.
15.
|
NOTICES
|
15.1
|
To
Eligible Employees and Participants
|
(A)
|
Any notice or
document to be given to any Eligible Employee or Participant may be given
through normal internal communications or by personal delivery or by
sending it by ordinary post to the individual’s last known address or by
e-mail or other electronic
transmission.
|
(B)
|
Where a
notice or document is sent by post it shall be deemed to have been
received 72 hours after it was put into the post properly addressed and
stamped.
|
(C)
|
All notices
and documents sent by post will be sent at the risk of the Eligible
Employee or Participant concerned. Neither the Company nor any of its
Subsidiaries nor the Trustee shall have any liability whatsoever to any
Eligible Employee or Participant in
|
21
respect of any
notice or document sent, nor shall the Company or any of its Subsidiaries or the
Trustee be concerned to see that any Eligible Employee or Participant actually
receives it.
15.2
|
To
the Company
|
Any notice or
document given by an Eligible Employee or a Participant to the Company or the
Committee shall be delivered or sent to the Company at its registered office,
marked for the attention of the Company Secretary (or at such other place or
places as the Committee may from time to time determine and notify to Eligible
Employees and Participants) and be effective upon receipt. Notices may be sent
by e-mail or other electronic transmission to such address as the Company may
from time to time specify.
15.3
|
To
the Trustee
|
Any notice or
document given by an Eligible Employee or a Participant to the Trustee shall be
delivered or sent to the Trustee, care of the Company at its registered office
(or at such other place or places as the Trustee may from time to time determine
and notify to Eligible Employees and Participants), and be effective upon
receipt.
22
SCHEDULE
- PERFORMANCE TARGET
The following is a
general description of the Performance Targets referred to in Rule
3.
(a)
|
The
Performance Targets will be based on Non GAAP EBITDA and adjusted return
on invested capital (“ROIC”), as computed by
the Company, using information derived from the Company’s audited accounts
and adjusted to ensure a consistent and equitable basis of measurement, as
approved by the Remuneration Committee, including the add back of
significant one time items.
|
(b)
|
Where the
Performance Target is imposed the SAR Award will be split between a base
award (being one quarter of the total award made) and a performance award.
Multiples of the base award will vest at the end of the performance period
depending on the achievement of performance against the
matrix.
|
Adjusted
ROIC
|
EBITDA growth (CAGR 2009-2012) | ||||
Increase
bp p.a.
|
8%
|
10%
|
12%
|
14%
|
16%
|
10
|
1.0x
|
1.3x
|
1.7x
|
2.1x
|
2.5x
|
20
|
1.3x
|
1.6x
|
2.0x
|
2.4x
|
2.8x
|
40
|
1.6x
|
1.9x
|
2.4x
|
2.7x
|
3.1x
|
60
|
1.9x
|
2.3x
|
2.6x
|
3.1x
|
3.5x
|
80
|
2.2x
|
2.6x
|
3.1x
|
3.6x
|
4.0x
|
100
|
2.5x
|
3.0x
|
3.5x
|
4.0x
|
4.0x
|
23
PART
B – PERFORMANCE SHARE AWARDS
1.
|
INTERPRETATION AND
CONSTRUCTION
|
1.1
|
Definitions
|
In
this Plan, the following definitions apply:
(A)
|
“ADS” means an American
Depositary Share representing
Shares.
|
(B)
|
“Associated Company”
means, in relation to the Company (i) any Company which has Control of the
Company; and (ii) any company which is under the Control of the Company or
any company referred to in (i)
|
(C)
|
The “Auditors” are the
auditors for the time being of the Company or in the event of there being
joint auditors, such one of them as the Board shall
select.
|
(D)
|
The “Board” means the board
of directors of the Company.
|
(E)
|
"Cause" means any reason
which justifies a Participant's summary
dismissal.
|
(F)
|
The “Committee” means the
Remuneration Committee of the Board or such other committee or committees
of the Board as may be appointed from time to
time.
|
(G)
|
The “Company” is Shire plc
registered in Jersey under No.
99854.
|
(H)
|
“Conditions” has the
meaning given in Rule 3.2(A) of Part
B.
|
(I)
|
“Control” has the
meaning given to it by section 840 of the Income and Corporation Taxes Act
1988.
|
(J)
|
The “Date of Grant” of a PSA
Award is the date on which it is
granted.
|
(K)
|
A “Dealing Day” is a day
on which the London Stock Exchange is open for the transaction of
business.
|
(L)
|
“Eligible Employee” is
any employee or salaried director of a member of the
Group.
|
(M)
|
A “Financial Year” means
the period beginning with the first day of the Company’s accounting
reference period and ending with the last day of that
period.
|
(N)
|
“Grantor” means the
Company where a PSA Award is, or is to be, granted by the Company and the
Trustee where a PSA Award is, or is to be, granted by the
Trustee.
|
(O)
|
“Grant Period” means any
of the following:
|
24
(i)
|
the period of
42 days commencing on the day on which Part B of the Plan is adopted by
the Company;
|
(ii)
|
the period of
42 days commencing on the day after that on which the Company makes an
announcement of its results for the last preceding Financial Year,
half-year or other period;
|
(iii)
|
when, or
shortly after, an Eligible Employee first becomes employed by a member of
the Group;
|
(iv)
|
when, or
shortly after, an Eligible Employee is promoted to a position which
qualifies him to receive a PSA Award or an increased level of PSA
Award;
|
(v)
|
any other
time where, in the discretion of the Committee, exceptional circumstances
exist which justify the grant of PSA
Awards.
|
(P)
|
The “Group” means the
Company and its Subsidiaries and “member of the Group” is to be construed
accordingly.
|
(Q)
|
The “London Stock Exchange”
means the London Stock Exchange plc or any recognised investment exchange
for the purposes of the Financial Services and Markets Act 2000 which may
take over the function of the London Stock Exchange
plc.
|
(R)
|
The “Market Value” of a Share
on any date is the closing mid-market price at which transactions in
shares take place on the London Stock Exchange on that date and the Market
Value of an ADS on any date is the closing mid-market price at which
transactions in ADSs take place on the NASDAQ on that
date.
|
(S)
|
A “PSA Award” is an award
to acquire Shares or ADSs granted under Rule 3 of Part B of the
Plan.
|
(T)
|
“Part B” means Part B of
the Plan under which PSA Awards can be granted (together with any
applicable Schedule or Appendix).
|
(U)
|
A “Participant” is the
holder of a PSA Award or, where the context admits or requires, his
personal representatives.
|
(V)
|
The “Performance Period” in
respect of a PSA Award is a period set by the Committee at or prior to
grant of a PSA Award.
|
(W)
|
“Performance Target”
means the measure of the financial or other performance of the Company
applied in relation to any PSA Award in accordance with Rule 3.2(A) of
Part B.
|
(X)
|
“Permitted Reason” in
relation to a Participant:
|
(i)
|
his
Retirement;
|
(ii)
|
his
ill-health, injury or disability;
|
(iii)
|
his
redundancy, within the meaning of the Employment Right Act 1996 or his job
elimination due to restructuring or a signified diminution of
duties;
|
25
(iv)
|
the company
by which the Participant is employed ceasing to be a member of the Group;
or
|
(v)
|
the business,
or part of the business, in which the Participant works being transferred
or sold to a person which is not a member of the
Group.
|
(Y)
|
The “Plan” means Parts A and
B of this plan (and including the Schedules and any Appendices to the
Rules) as from time to time
amended.
|
(Z)
|
“Retirement”
means
|
(i)
|
for PSA
Awards granted on or before 17th February 2010 only, retirement on or
after the Participant’s normal retirement date as specified in his
contract of employment (or if there is no such date, his 65th
birthday); or
|
(ii)
|
for any PSA
Awards, his retirement from employment with the consent of the
Company.
|
(AA)
|
The “Rules” means the rules
of this Plan.
|
(BB)
|
“Service Factor” means
the fraction of which:
|
(i)
|
the numerator
is the number of complete weeks in the relevant period (defined below)
during which the Participant was employed (or would have been employed had
he remained in employment throughout his notice period) within the Group
(in any case where Rule 6 of Part B applies) or prior to the relevant date
(in any case where Rule 8 of Part B applies);
and
|
(ii)
|
the
denominator is the total number of complete weeks in the relevant
period;
|
and for these
purposes, the relevant
period is, as the Committee may decide, either the Performance Period or
the period which starts with the Date of Grant and ends with the end of the
Performance Period, but ignoring any provision in the Rules which deems the
Performance Period to have ended earlier than it would otherwise have done but
for those Rules. Where there is no Performance Period, the relevant period shall
be the period which starts with the Date of Grant and ends with the Vesting
Date, ignoring any provision in the Rules which deems the Vesting Date to have
taken place earlier than it would have under Rule 5.2.
(CC)
|
“Shares” means
fully-paid ordinary shares in the capital of the
Company.
|
(DD)
|
“Subsidiary” has the
meaning given to it by section 1159 of the Companies Act
2006.
|
26
(EE)
|
The “Trust” means any trust
for the benefit of, inter alia, employees of the Group from time to time
designated by the Committee.
|
(FF)
|
The “Trustee” means the
trustee or trustees for the time being of the Trust or, if there is more
than one, the trustee or trustees of the Trust nominated by the
Committee.
|
(GG)
|
“UK Listing Authority”
means the Financial Services Authority acting in its capacity as the competent
authority for the purposes of Part 6 of the Financial Services and Markets
Act 2000 or such other person as is from time to time appointed to be the
competent authority for the purposes of that
Act.
|
(HH)
|
“Unvested PSA Award”
means any PSA Award or (as the case may be) that part of a PSA Award which is
not a Vested PSA Award.
|
(II)
|
“Vested PSA Award”
means, subject to the Rules, a PSA Award, or (as the case may be) that part of a
PSA Award which has vested in accordance with Rule 5.2 or otherwise of
Part B.
|
(JJ)
|
“Vesting Date” means in
relation to any PSA Award, the date or dates on which such PSA Award
vests.
|
1.2
|
Meaning
of ceasing to be employed within the
Group
|
(A)
|
For the
purposes of Part B of the Rules, but subject to (B), a Participant is to
be treated as ceasing to be employed within the Group when he is no longer
employed by any company which is a member of the Group. For the avoidance
of doubt, a Participant will cease to be employed by a member of the Group
if the company by which he is employed ceases to be a member of the
Group.
|
(B)
|
If a
Participant is away from work:
|
(i)
|
in
circumstances where he has a contractual or statutory right to return to
work at the end of the period of leave;
or
|
(ii)
|
because of a
period of leave approved by the Committee for this
purpose,
|
that Participant
will be treated for the purposes of Part B of the Rules as continuing to be
employed within the Group (whether or not he is) unless and until the Committee
is satisfied that there is no longer any reasonable expectation that the
Participant will return to work.
1.3
|
Construction
|
(A)
|
Where the
context so admits, any reference in Part B of the Plan to the singular
includes the plural and vice versa.
|
27
(B)
|
Where the
context so admits, any reference in Part B of the Plan to the masculine
includes the feminine.
|
(C)
|
Any reference
in Part B of the Plan to any enactment is, unless otherwise stated, to the
relevant United Kingdom legislation and includes a reference to that
enactment as from time to time modified, extended or
re-enacted.
|
(D)
|
The headings
to the Rules are for reference purposes only and shall not affect the
meaning or construction of the
Rules.
|
1.4
|
Governing
law
|
Part B of the Plan
and any PSA Award granted under it is governed by, and is to be construed in
accordance with, English law.
1.5
|
Administration
|
Unless the Rules
say otherwise, the Committee will administer Part B of the Plan.
1.6
|
Disputes
|
The Committee’s
decision on the construction of Part B of the Rules and on any disputes arising
under Part B of the Plan is final and binding on all persons.
2.
|
ELIGIBILITY
|
2.1
|
The persons
who are eligible to receive PSA Awards are such Eligible Employees as are
selected by
the Committee, in its discretion, to participate in the
Plan.
|
3.
|
GRANT
OF PSA AWARDS
|
3.1
|
Operation
of Part B of the Plan
|
(A)
|
The Committee
shall decide whether or not to operate Part B of the Plan on any occasion
and whether PSA Awards should be made by the Company or by the
Trustee.
|
(B)
|
All PSA
Awards must be granted during the Grant
Period.
|
(C)
|
The Committee
must ensure that the limits in Rule 4 and 14 are not
exceeded.
|
(D)
|
The Committee
shall ensure that Part B of the Plan is not operated at any time, or in
any circumstances, when to do so would contravene the provisions of the
Criminal Justice Act 1993, the Company’s share dealing code, the Listing
Rules of the UK Listing Authority or any other applicable laws or
regulations.
|
(E)
|
No PSA Award
shall be granted after 28 October
2015.
|
28
(F)
|
PSA Awards
granted under Part B of the Plan will not be
pensionable.
|
3.2
|
Grant
of PSA Awards
|
(A)
|
The Committee
shall have absolute discretion to determine whether conditions shall apply
before a PSA Award may vest. Where the Committee determines that
conditions shall apply, those conditions shall
include:
|
(i)
|
a measure or
measures of the financial or other performance of the Group (the “Performance Target”);
and
|
(ii)
|
such
additional conditions (if any) as the Committee may
determine,
|
(together the
“Conditions”).
Details of the
Conditions, as initially adopted, are set out in the schedule to Part B of these
Rules and the Conditions set out in this schedule shall apply where the
Committee does not specify any alternative Conditions.
(B)
|
If PSA Awards
are to be granted by the Company and the Committee determines that
Conditions should apply to such PSA Award, the Company will grant a PSA
Award to each relevant Eligible Employee on such
Conditions.
|
(C)
|
If PSA Awards
are to be granted by the Trustee, the Committee must notify the Trustee
of:
|
(i)
|
the Eligible
Employees whom it recommends be granted PSA Awards;
and
|
(ii)
|
the
Conditions which the Committee recommends should be attached to PSA Awards
and the applicable Performance Period (where
applicable),
|
and, if the Trustee
agrees to Part B of the Plan being operated in relation to that period and those
individuals, the Trustee will grant a PSA Award to each such Eligible Employee
on such terms.
(D)
|
Appendices to
the Plan may set out special terms applying to Eligible Employees or
Participants in any jurisdiction.
|
(E)
|
Each Eligible
Employee who receives a PSA Award will be given written notice of the PSA
Award and of any Conditions applying to that PSA
Award.
|
3.3
|
Shares
or ADSs comprised in a PSA Award
|
Participants shall
be notified as to whether the PSA Awards they receive are to be in respect of
Shares or ADSs.
29
3.4
|
Adjustment
of Performance Targets
|
(A)
|
In the
circumstances mentioned in Rule 3.4(E), the Committee may change or waive
the Performance Target and/or the additional Conditions (if any) imposed
under Rule 3.2(A).
|
(B)
|
The power to
change includes both the power to adjust and also the power to impose a
replacement Performance Target and/or replacement additional Conditions
and to amend the companies in any comparator
group.
|
(C)
|
The
Committee's power is, however, restricted in that the change must not have
the effect of making the Performance Target or the additional Conditions
either materially easier or materially more difficult to achieve, in the
opinion of the Committee, than it was or they were immediately before the
circumstance in question.
|
(D)
|
Where the
Grantor exercises its power to waive the Performance Target or the
additional Conditions, the Grantor is not required to impose a replacement
Performance Target and/or replacement additional
Conditions.
|
(E)
|
The
circumstances are:
|
(i)
|
any variation
of the Company’s capital,
|
(ii)
|
such
circumstances as were specified when the PSA Award was granted,
and
|
(iii)
|
any event or
events as a result of which the Committee considers it fair and reasonable
to change or waive the Performance Target and/or the additional
Conditions.
|
(F)
|
In any case
where the Grantor is the Trustee, the Committee must tell the Trustee
before setting or changing or waiving the Performance Target or other
Conditions.
|
3.5
|
Adjustment
for dividends
|
(A)
|
When a PSA
Award vests, the number of Shares or ADSs which are issued or transferred
to the Participant in satisfaction of the PSA Award will be increased in
accordance with Rule 3.5(B), to reflect the dividends paid by the Company
in the period from the Date of Grant to the Vesting
Date.
|
(B)
|
The number of
Shares or ADSs transferred to a Participant in accordance with Rule 8 of
Part B upon the vesting of a PSA Award will be increased by assuming that
the dividends that would have been paid on those Shares or ADSs which vest
(had the Participant been the owner of them) would have been reinvested in
accordance with the Company’s dividend reinvestment programme (if any) or
on such other basis as the Committee may
decide.
|
30
3.6
|
Deed
of grant for PSA Awards
|
There shall be no
consideration for the grant of a PSA Award. On the Date of Grant, the Grantor
must execute a deed of grant in favour of each recipient of a PSA Award. The
deed of grant may be in favour of more than one recipient. If so, it will be
retained by the Grantor but the Grantor must make it (or the relevant part of
it) available for inspection by each recipient. As soon as practicable after the
Date of Grant, the Company must procure that each recipient is given written
details of his PSA Award. The deed of grant and the written details given to
each recipient must state the full terms of the Performance Target (if any) and
any other Conditions applicable to the PSA Award.
4.
|
INDIVIDUAL
LIMIT
|
(A)
|
Except in
circumstances determined by the Committee to be exceptional, each PSA
Award must be limited and must therefore take effect, so that the total
Market Value of the Shares or ADSs, as the case may be, under a PSA Award,
in respect of each Participant does not exceed four times the individual’s
pay (see (B)) annually.
|
(B)
|
The pay of a Participant on
any date is the annual rate of his basic pay (excluding bonuses,
commissions and benefits in kind) from all members of the Group on that
date.
|
5.
|
VESTING
OF PSA AWARDS
|
5.1
|
General
|
The number of
Shares or ADSs in respect of which a PSA Award vests and to which the
Participant will consequently become entitled is to be determined by the
Committee (with the consent of the Trustee, if the Trustee is the Grantor) in
accordance with the following provisions of this Rule 5.
5.2
|
Vesting
of Awards
|
(A)
|
Subject to
Rule 5.2(B) and (C), PSA Awards will vest on
the:
|
(i)
|
third
anniversary of the Date of Grant in the case of Participants who hold PSA
Awards which are not subject to a Performance Target and/or
Conditions; and
|
(ii)
|
third
anniversary of the Date of Grant or the date on which the Committee
determines that the Performance Target and any other Conditions imposed
under Rule 3.2(A) have been satisfied and that, in the opinion of the
Committee, the underlying performance of the Company is sufficient to
justify the vesting of a PSA Award in the case of Participants who hold
PSA Awards which are subject to a Performance Target and/or Conditions, if
later,
|
unless they have
previously lapsed in accordance with the Rules of the Plan. In the case of PSA
Awards which are subject to a Performance Target and/or Conditions,
if
31
the Performance
Target or any other Conditions are not met or if the Committee determines that
the underlying performance of the Company is not sufficient to justify vesting,
the PSA Awards will lapse.
(B)
|
If the
Committee so determines on or prior to the Date of Grant, PSA Awards for
individuals who are not directors of the Company and who do not hold the
position of Executive Vice-President of the Company may vest on such other
date, or may vest in tranches on such other dates, as the Committee may
determine provided that the first vesting may not be earlier than the
first anniversary of the Date of Grant. Where a PSA Award vests in
tranches on more than one date, the Committee shall determine the
proportion of the PSA Award which vests on each such
date.
|
(C)
|
If the
Participant’s PSA Award does not vest, or does not vest in full on the
specified date, then the PSA Award or, as the case may be, the unvested
portion of it, shall lapse.
|
5.3
|
Notification
to Participant
|
The Committee shall
notify Participants as soon as reasonably practicable of the percentage (if any)
of a PSA Award which has vested.
5.4
|
Share
Dealing Code
|
(A)
|
At any time
when the buying or selling of securities by a director or employee of the
Company would breach the Company’s code of practice on dealings in shares
and other securities, the vesting of a PSA Award may not
occur.
|
(B)
|
The
restriction in (A) applies even if the Participant is not at that time
forbidden by the code from buying or selling securities. The restriction
does not, however, apply if permission is
given:
|
(i)
|
in the case
of a Participant who is bound by that code, in accordance with the
procedures laid down in the code;
or
|
(ii)
|
in the case
of any other Participant, by such person as the Committee may nominate for
this purpose.
|
6.
|
RESTRICTIONS UPON
VESTING
|
6.1
|
General
|
This Rule 6
overrides the other Rules in this Part B.
6.2
|
Lapsing
of PSA Awards
|
If
a PSA Award lapses under any Rule, it will lapse for all purposes and will not
vest.
32
6.3
|
Cessation
of employment - general
|
(A)
|
Unless any of
the following provisions apply, if a Participant’s employment within the
Group ends for any reason whatsoever, his PSA Award will lapse on the date
on which his employment ends, unless the Committee determines otherwise in
its absolute discretion.
|
(B)
|
If all of the
following conditions are
satisfied:
|
(i)
|
a Participant
ceases to be employed within the
Group;
|
(ii)
|
but for this
Rule, his PSA Award would lapse (in whole or in part) on his employment
ending; and
|
(iii)
|
under the
laws of the country in which the Participant works or lives or to which he
is subject, such lapsing is unlawful or may render the Participant’s
employer liable to some
disadvantage,
|
the Committee may
take such action as it considers appropriate (to the minimum extent necessary to
comply with those laws or to ensure that the employer is not liable to that
disadvantage) including (without limitation) deciding that the PSA Award will
become a Vested PSA Award.
6.4
|
Cessation
of Employment – Unvested PSA Awards
|
(A)
|
This Rule
applies if a Participant’s employment within the Group ends at a time when
he holds an Unvested PSA Award and his employment
ends:
|
(i)
|
for a
Permitted Reason; or
|
(ii)
|
for any
reason other than a Permitted Reason or death and the Committee, in its
absolute discretion, decides that this Rule will apply in relation to that
PSA Award.
|
(B)
|
Subject to
(C), the Participant’s PSA Award shall become a Vested PSA Award (if at
all) in respect of the number of Shares or ADSs determined in accordance
with Rule 5.1 by applying that Rule, as the Committee may decide,
either:
|
(i)
|
in the case
of PSA Awards with a Performance Target and/or Conditions by deeming the
Performance Period to have ended on the date on which the Participant’s
employment ends or on some other date before the end of the Performance
Period; or
|
(ii)
|
in respect of
PSA Awards where there is no Performance Target or other Conditions, at
the date on which the Participant’s employment
ends.
|
33
If, and to the
extent that a PSA Award does not become a Vested PSA Award, it will
lapse.
(C)
|
The number of
Shares or ADSs in respect of which the PSA Award may become a Vested PSA
Award will be reduced by the Service Factor, unless the Committee, in its
absolute discretion, determines
otherwise.
|
(D)
|
Where a PSA
Award becomes a Vested PSA Award, Shares or ADSs will be transferred to
the Participant in accordance with Rule
9.
|
6.5
|
Death
of a Participant
|
(A)
|
If a
Participant dies holding an Unvested PSA Award, the PSA Award will become
a Vested PSA Award on the date of death and the number of Shares or ADSs
in respect of which the PSA Award may become a Vested PSA Award will be
reduced by the Service Factor, unless the Committee, in its absolute
discretion, determines
otherwise.
|
(B)
|
In respect of
PSA Awards with a Performance Target and/or Conditions, they will cease to
apply upon the death of a
Participant.
|
(C)
|
Where a PSA
Award becomes a Vested PSA Award, Shares or ADSs will be transferred to
the Participant in accordance with Rule
9.
|
(D)
|
If, and to
the extent that a PSA Award does not became a Vested PSA Award, it will
lapse.
|
7.
|
LAPSE
OF PSA AWARDS
|
Awards shall lapse
upon the occurrence of the earliest of the following events:
(i)
|
except to the
extent that it has vested, on the day immediately after the third
anniversary of the Date of Grant or if applicable the later of such date
and the date on which the Committee confirms that any Performance Target
and/or Conditions have or have not been
met;
|
(ii)
|
in accordance
with Rule 5.2;
|
(iii)
|
the expiry of
any of the periods specified in Rule
6;
|
(iv)
|
in accordance
with Rule 8.
|
8.
|
CHANGE
IN CONTROL AND LIQUIDATION
|
8.1
|
General
Offer
|
Subject to Rule
8.2, if any person obtains Control of the Company as a result of making
either:
34
(i)
|
a general
offer to acquire the whole of the issued ordinary share capital of the
Company (which is made on a condition that if it is satisfied the person
making the offer will have Control of the Company);
or
|
(ii)
|
a general
offer to acquire all the shares in the Company which are of the same class
as the Shares,
|
then, subject to
Rules 8.6 and 8.7, PSA Awards will vest if and to the extent provided in Rule
8.5.
For the purposes of
this Rule 8.1, a person shall be deemed to have obtained Control of the Company
if he and others acting in concert with him have together obtained Control of
it.
8.2
|
Part
18 Companies (Jersey) Law 1991
|
If
any person becomes bound or entitled to acquire Shares in the Company under Part
18 of the Companies (Jersey) Law 1991 then, subject to Rules 8.6 and 8.7, PSA
Awards will vest if and to the extent provided in Rule 8.5.
8.3
|
Article
125 Companies (Jersey) Law 1991
|
If
under Article 125 of the Companies (Jersey) Law 1991 the court sanctions a
compromise or arrangement between the Company and its members then, subject to
Rules 8.6 and 8.7, PSA Awards will vest if and to the extent provided in Rule
8.5.
8.4
|
Winding-up
|
All PSA Awards will
lapse when an effective resolution is passed or an order is made for the
winding-up of the Company, unless the Committee determines
otherwise.
8.5
|
Vesting
of PSA Awards
|
(A)
|
In the
circumstances referred to in Rules 8.1 to 8.3, if the Participant has an
Unvested PSA Award, then it will become a Vested PSA Award, subject, where
a Performance Target and/or Conditions apply, also to Rule 8.5(B), as
follows:
|
(i)
|
where one
year or less has elapsed since the Date of Grant, in respect of one-third
of the number of Shares or ADSs subject to the PSA Award;
or
|
(ii)
|
where between
one and two years have elapsed since the Date of Grant, in respect of
two-thirds of the number of Shares or ADSs subject to the PSA Award;
or
|
(iii)
|
where between
two and three years have elapsed since the Date of Grant, in respect of
the full number of Shares or ADSs subject to the PSA
Award.
|
35
(B)
|
In respect of
PSA Awards with a Performance Target and/or Conditions, unless the
Committee in its absolute discretion determines otherwise, the PSA Award
will only become a Vested PSA Award to the extent that the Committee
determines that the Performance Target and any other Conditions imposed
under Rule 3.2(A) of Part B have been satisfied on the basis that the
Performance Period is deemed to have ended on the date of the event
referred to in Rules 8.1 to 8.3. Any pro-rating required by Rule 8.5(A)
will apply to reduce the Vested PSA Award determined under this Rule
8.5(B).
|
(C)
|
To the extent
that a PSA Award does not become a Vested PSA Award in accordance with
this Rule 8.5, subject to Rule 8.6, it shall
lapse.
|
8.6
|
Exchange
of PSA Awards
|
(A)
|
In the
circumstances referred to in Rules 8.1 to 8.3, if a company obtains
Control of the Company, a Participant may, if the acquiring company so
agrees and within the Relevant Period, release his PSA Award (the old award) in
consideration of the grant to him of an award over shares in the acquiring
company or a member of the acquiring company’s group (the new
award).
|
(B)
|
In this Rule
8.6 “Relevant
Period” means:
|
(i)
|
in a case
falling within Rule 8.1, six months beginning with the time when the
acquiring company obtains Control of the Company and any condition subject
to which the offer is made is satisfied or
waived;
|
(ii)
|
in a case
falling within Rule 8.2, the period during which the acquiring company
remains so bound or entitled;
and
|
(iii)
|
in a case
falling within Rule 8.3, six months beginning with the time when the court
sanctions the compromise or
arrangement.
|
(C)
|
If a
Participant is granted a new award under Rule
8.6:
|
(i)
|
the new award
will vest in the same way as the old award and will vest on the first date
on which the old award could have become a Vested PSA
Award;
|
(ii)
|
the Rules
will apply to the new award as if references to Shares were references to
the shares in respect of which the new award is
granted;
|
(iii)
|
the Rules
will apply to the new award as if references to the Company (including any
such references as occur in expressions which are defined in Rule 1.1 and
are used in those Rules) were references to the company in respect of
whose shares the new award is
granted;
|
(iv)
|
the Rules
will otherwise apply with such adjustments as the Committee may decide;
and
|
36
(v)
|
the existing
Performance Target and/or Conditions will continue to apply to the new
award unless the Committee determines that a replacement Performance
Target and/or Conditions should
apply.
|
(D)
|
If a
Participant’s old award is an Unvested PSA Award, the Committee may
determine that the Participant will be deemed to have agreed to the
release of his old award in return for the grant of a new award under Rule
8.6.
|
(E)
|
Where this
Rule 8.6 applies and a Participant agrees to exchange his PSA Award for an
award over shares in the acquiring company (or a member of the acquiring
company’s group), his PSA Award shall not
vest.
|
8.7
|
Overriding
Provision
|
If:
(i)
|
there occurs
an arrangement as a result of which the Company will be under the Control
of another company; and
|
(ii)
|
either:
|
(a)
|
the persons
who will own shares in the acquiring company immediately after the
arrangement will be substantially the same as the persons who own shares
in the Company immediately before the arrangement;
or
|
(b)
|
in relation
to PSA Awards granted after 17 February 2010, the Committee determines
that this provision should apply,
and
|
(iii)
|
Participants
are to be offered replacement awards which satisfy the requirements for a
new award set out in Rule
8.6,
|
then,
notwithstanding the previous provisions of this Rule 8, Unvested PSA Awards
shall not become Vested PSA Awards as provided for in this Rule 8. To the extent
that Participants do not agree to exchange their old awards for new awards, they
will lapse unless the Committee determines otherwise in its absolute
discretion.
9.
|
PROCEDURE ON
VESTING
|
9.1
|
Issue
or Transfer of Shares
|
(A)
|
Subject to
(C) below, within 30 days of the date on which a PSA Award vests the
Company shall:
|
(i)
|
issue,
re-issue from treasury or procure the transfer of;
or
|
(ii)
|
(where the
PSA Award was granted by the Trustee), the Trustee will
transfer,
|
37
to
the Participant (or at the Participant’s direction) the number of Shares which
have vested. In the case of an award over ADSs, the Company must arrange for the
ADSs, and the American Depositary Receipts evidencing the ADSs, to be
transferred to the Participant or to someone else chosen by the
Participant.
(B)
|
This
obligation is, however, subject to Rules 9.2 and
9.3.
|
(C)
|
It is also
subject to obtaining such consents or approvals as may be required by any
competent authority under regulations or enactments for the time being in
force and, in the case of ADSs, to the provisions of the deposit
arrangement between the Company and the depositary bank for the Company’s
ADS programme. It is the responsibility of the Participant to obtain such
consents and approvals.
|
(D)
|
Any stamp
duty payable on the transfer of Shares under a PSA Award shall be paid by
the Company.
|
9.2
|
Withholding
obligations
|
(A)
|
This Rule 9.2
applies if a Participant is liable to tax, duties or other amounts on the
vesting of a PSA Award and the Participant’s employer or former employer
is liable to make a payment to the appropriate authorities on account of
that liability.
|
(B)
|
Where a PSA
Award has vested either the Company or the Trustee will sell on behalf of
the Participant sufficient of the Shares or ADSs which would otherwise be
issued or transferred to the Participant on that vesting so that the net
proceeds of sale equal the minimum payment which the employer or former
employer is required to pay to the appropriate authorities on behalf of
the Participant. Where such Shares or ADSs are sold by the Trustee, the
Trustee will account to the employer or former employer for the net
proceeds of sale. The Company will procure that an amount equal to those
net proceeds is remitted to the appropriate authorities on behalf of the
Participant.
|
(C)
|
Rule 9.2(B)
shall not apply, where it is not possible for the Company or the Trustee
to act in this way. In these circumstances, the Participant must make
alternative arrangements for the payment of an amount due on the vesting
of the PSA Award to the satisfaction of the Participant’s employer or
former employer.
|
(D)
|
The Company
or Trustee need not sell the Shares or ADSs referred to in Rule 9.2(B) in
whole or in part and may either not issue such Shares or may retain them
as assets of the Trust provided that an amount equal to the payment
required to be made to the appropriate authorities is made by the Company
or is accounted for by the Trustee to the employer or former employer,
derived from the other assets of the Company or the Trustee, as the case
may be.
|
9.3
|
Provision
of Shares
|
(A)
|
If and to the
extent that a PSA Award granted by the Trustee vests in accordance with
the Rules and:
|
38
(i)
|
the Trustee
is unable to transfer Shares or ADSs to the Participant, whether due to it
holding insufficient Shares or ADSs or other assets to enable it to meet
such PSA Award or otherwise;
or
|
(ii)
|
any such
transfer would be unlawful in any relevant jurisdiction;
or
|
(iii)
|
in making
such a transfer the Trustee would be in breach of its duties under the
Trust,
|
the obligations of the
Trustee under the Plan and the PSA Award shall lapse.
(B)
|
If the
obligations of the Trustee so lapse, the Company shall procure that any
Shares or ADSs not so transferred by the Trustee to which the Participant
is entitled under the Rules (ignoring Rule 9.3(A)) (or an amount equal to
the proceeds of the sale of such number of Shares) are issued by the
Company or transferred to the relevant Participant, either by the Trustee
or by some other person, as soon as reasonably
practicable.
|
10.
|
NON-TRANSFERABILITY
OF PSA AWARDS
|
(A)
|
A PSA Award
is personal to the Participant and the Participant’s personal
representatives.
|
(B)
|
If a
Participant transfers, assigns, charges, encumbers or otherwise alienates
a PSA Award or creates in favour of any third party any interest therein
or, in any case, attempts so to do, or a bankruptcy order is made in
respect of the Participant (or any similar event occurs under the laws of
any other country), the PSA Award shall
lapse.
|
11.
|
LOSS
OF OFFICE
|
(A)
|
The
participation in Part B of the Plan by a Participant is a matter entirely
separate from, and shall not affect, the Participant’s pension rights and
terms of employment.
|
(B)
|
In particular
(but without limitation), if a Participant for any reason whatsoever
ceases to be employed by a member of the Group (whether or not such
cessation involves breach, or alleged breach, of contract by the Company)
or to be entitled to receive a PSA Award or Vested PSA Award, the
Participant is not entitled to any rights or benefits under the Plan save
as specifically provided elsewhere in these Rules and is not entitled to
any compensation by reference to the rights granted to, or the benefits
capable of being received by, the Participant under Part B of this Plan or
for any loss or diminution in value in such rights or
benefits.
|
39
12.
|
VARIATION OF
CAPITAL
|
12.1
|
General
|
This Rule 12
applies if there is a variation in the share capital of the Company or in such
other circumstances as the Committee considers appropriate.
12.2
|
Adjustment of
Awards2
|
(A)
|
Subject to
the rest of this Rule 12, the Committee shall adjust each PSA Award in
such manner as it decides to be appropriate, with the consent of the
Trustee where the Grantor is the Trustee. The Committee’s decision will be
final.
|
(B)
|
For the
avoidance of doubt, the Committee shall adjust each PSA Award which has
vested but in respect of which Shares or ADSs have not yet been issued or
transferred in a manner which is equitable to PSA Award
holders.
|
(C)
|
The Committee
shall determine how such adjustment shall be carried out. The Committee’s
decision shall be final and binding on each
Participant.
|
12.3
|
Notification
of adjustment
|
The Grantor must
notify each Participant of any adjustment to a PSA Award as soon as practicable
after the decision.
13.
|
GENERAL
|
13.1
|
Administration
|
(A)
|
Save as
otherwise provided in the Rules of Part B, the Committee shall administer
Part B of the Plan.
|
(B)
|
The Committee
may from time to time make and amend such regulations for the
implementation and administration of Part B of the Plan as it thinks
fit.
|
13.2
|
Costs
and expenses
|
The costs of the
preparation and operation of Part B of the Plan shall be borne by the Company
and the Subsidiaries in such proportions as the Committee from time to time
determines.
13.3
|
Power
of amendment
|
2
|
Rule 12.2(B)
and (C) amended by resolution on 23 June 2008, pursuant to a resolution of
the Implementation Committee dated 15 April
2008.
|
40
(A)
|
The Committee
may at any time and from time to time amend Part B of the Plan in any
respect provided that:
|
(i)
|
subject to
Rule 13.3(B), no amendment may be made to the advantage of Eligible
Employees or Participants to any provision of the Rules without the prior
approval of the Company in general meeting;
and
|
(ii)
|
no amendment
shall be made which would affect adversely any of the subsisting rights of
a Participant except either with the Participant’s consent in writing or
the consent of the majority of the Participants affected by the amendment
or addition.
|
(B)
|
Notwithstanding
the limitation contained in Rule 13.3(A), the Committee may without the
prior approval of the Company in general
meeting:
|
(i)
|
amend Part B
of the Plan in order to take account of any amendments to any applicable
legislation or to obtain or maintain favourable tax, exchange control or
regulatory treatment for Participants or any member of the Group;
or
|
(ii)
|
make minor
amendments to Part B of the Plan to benefit its
administration.
|
(C)
|
The Committee
must give written notice to all Participants of any amendment made in
accordance with this Rule 13.3 which affects their rights in any material
respect.
|
13.4
|
Sub
plans
|
In
exercising its powers of amendment, the Committee may create sub plans and
schedules to Part B of the Plan, as necessary, so as to be able to operate the
Plan in jurisdictions other than the United Kingdom.
13.5
|
Termination
|
The Committee may
at any time suspend or terminate the operation of Part B of the Plan and in such
event no further PSA Awards will be made for the time being or, as the case may
be, permanently but in all other respects the provisions of Part B of the Plan
shall remain in force.
14.
|
PLAN
LIMITS
|
14.1
|
General
|
The Committee must
make sure that the nominal amount of Shares in respect of which PSA Awards are
granted on any date does not exceed either of the limits set out in Rule 14.3 or
14.4.
Where PSA Awards
are granted on the basis that the number of Shares in respect of which the PSA
Award is made may be increased, depending upon achievement of Performance Targets,
41
the maximum number
of Shares to which the PSA Award may relate if Performance Targets are achieved
in full will count towards the limits set out in Rule 14.3 and
14.4.
14.2
|
Meaning
of terms used in Rule 14
|
In
this Rule 14:
(i)
|
allocate means the issue
of new Shares or the transfer of treasury shares in satisfaction of a
person’s rights under an
award;
|
(ii)
|
an award means any option
or other right to acquire or receive Shares whether conditional or
unconditional and whether or not for
payment;
|
(iii)
|
a discretionary scheme is
a scheme in which those taking part are senior employees and directors
chosen at the discretion of the body administering the
scheme;
|
(iv)
|
an employee share scheme
means any scheme for employees of the Group which has been approved by the
Company in general meeting;
|
(v)
|
equity share capital has
the same meaning as in section 548 of the Companies Act 2006 but, for the
avoidance of doubt, will include any treasury
shares;
|
(vi)
|
no account
will be taken of Shares acquired by an employee or former employee (or the
personal representatives of such a person) where the Shares are acquired
for a price equal to their Market Value at or about the date of
acquisition and the cost of those Shares is borne by the employee or
former employee (or his
estate);
|
(vii)
|
subject to
(viii), no account will be taken of an award if, and to the extent that,
the Committee considers that it will be satisfied by the transfer of
existing Shares other than treasury shares;
and
|
(viii)
|
any Shares
allocated to the trustee of any trust which were used to satisfy awards
granted under an employee share scheme must be treated as having been
allocated in respect of those awards unless the Shares were acquired by
the trustee pursuant to a rights issue or other opportunity offered to the
trustee in respect of Shares other than Shares previously allocated to
it.
|
14.3
|
10%
in 10 years for all schemes
|
The limit for this
Rule is A minus B where A is 10% of the nominal amount of the Company’s equity
share capital on the date before the Date of Grant, and B is the total nominal
amount of the following:
(i)
|
Shares
allocated in respect of awards granted within the previous 10 years under
any employee share scheme,
|
42
(ii)
|
Shares
remaining to be allocated in respect of awards granted on the same date or
within the previous 10 years under any employee share scheme,
and
|
(iii)
|
Shares
allocated on the same date or within the previous 10 years under any
employee share scheme otherwise than in respect of an
award.
|
Shares in Shire
Biopharmaceuticals Holdings or in Shire Pharmaceuticals Group issued
or treasury shares reissued under share plans of Shire
Biopharmaceuticals Holdings or Shire Pharmaceuticals Group count
towards the limits set out in Rule 14.3 as if they were shares in the
Company.
14.4
|
5%
in 10 years for discretionary
schemes
|
The limit for this
Rule is A minus B where A is 5% of the nominal amount of the Company’s equity
share capital on the day before the Date of Grant, and B is the total nominal
amount of the following:
(i)
|
Shares
allocated in respect of awards granted within the previous 10 years under
any discretionary employee share
scheme,
|
(ii)
|
Shares
remaining to be allocated in respect of awards granted on the same date or
within the previous 10 years under any discretionary employee share
scheme, and
|
(iii)
|
Shares
allocated on the same date or within the previous 10 years under any
discretionary employee share scheme otherwise than in respect of an
award.
|
Shares
in Shire Biopharmaceuticals Holdings or in Shire Pharmaceuticals
Group issued or treasury shares reissued under share plans of Shire
Biopharmaceuticals Holdings or Shire Pharmaceuticals Group count
towards the limits set out in Rule 14.4 as if they were shares in the
Company.
14.5
|
Life
of Plan
|
No
PSA Awards may be granted more than 10 years after shareholders of the Company
approve Part B of the Plan.
15.
|
NOTICES
|
15.1
|
To
Eligible Employees and Participants
|
(A)
|
Any notice or
document to be given any Eligible Employee or Participant may be given
through normal internal communications or by personal delivery or by
sending it by ordinary post to the individual’s last known address or by
e-mail or other electronic
transmission.
|
(B)
|
Where a
notice or document is sent by post it shall be deemed to have been
received 72 hours after it was put into the post properly addressed and
stamped.
|
43
(C)
|
All notices
and documents sent by post will be sent at the risk of the Eligible
Employee or Participant concerned. Neither the Company nor any of its
Subsidiaries nor the Trustee shall have any liability whatsoever to any
Eligible Employee or Participant in respect of any notice or document
sent, nor shall the Company or any of its Subsidiaries or the Trustee be
concerned to see that any Eligible Employee or Participant actually
receives it.
|
15.2
|
To
the Company
|
Any notice or
document given by an Eligible Employee or a Participant to the Company or the
Committee shall be delivered or sent to the Company at its registered office,
marked for the attention of the Company Secretary (or at such other place or
places as the Committee may from time to time determine and notify to Eligible
Employees and Participants) and be effective upon receipt. Notices may be sent
by e-mail or other electronic transmission to such address as the Company may
from time to time specify.
15.3
|
To
the Trustee
|
Any notice or
document given by an Eligible Employee or a Participant to the Trustee shall be
delivered or sent to the Trustee, care of the Company at its registered office
(or at such other place or places as the Trustee may from time to time determine
and notify to Eligible Employees and Participants), and be effective upon
receipt.
44
SCHEDULE
- PERFORMANCE TARGET
The following is a
general description of the Performance Targets referred to in Rule
3.
(a)
|
The
Performance Targets will be based on Non GAAP EBITDA and adjusted return
on invested capital (“ROIC”), as computed by
the Company, using information derived from the Company’s audited accounts
and adjusted to ensure a consistent and equitable basis of measurement, as
approved by the Remuneration Committee, including the add back of
significant one time items.
|
(b)
|
Where the
Performance Target is imposed the PSA Award will be split between a base
award (being one quarter of the total award made) and a performance award.
Multiples of the base award will vest at the end of the performance period
depending on the achievement of performance against the
matrix.
|
Adjusted
ROIC
|
EBITDA
growth (CAGR 2009-2012)
|
||||
Increase
bp p.a.
|
8%
|
10%
|
12%
|
14%
|
16%
|
10
|
1.0x
|
1.3x
|
1.7x
|
2.1x
|
2.5x
|
20
|
1.3x
|
1.6x
|
2.0x
|
2.4x
|
2.8x
|
40
|
1.6x
|
1.9x
|
2.4x
|
2.7x
|
3.1x
|
60
|
1.9x
|
2.3x
|
2.6x
|
3.1x
|
3.5x
|
80
|
2.2x
|
2.6x
|
3.1x
|
3.6x
|
4.0x
|
100
|
2.5x
|
3.0x
|
3.5x
|
4.0x
|
4.0x
|
45
APPENDIX
A - AWARDS TO CANADIAN PARTICIPANTS
1.
|
Notwithstanding
any other provisions of the Rules, any award made on or after 1 February
2008 under Part B of the Rules to any person who is in the year prior to
the Date of Grant resident for tax purposes in Canada (a “Canadian Participant”)
shall, if and to the extent it has not already vested or lapsed, vest on
December 20, of the second calendar year following the year in which the
Date of Grant occurred.
|
2.
|
Save as
provided above, the provisions of the Rules shall apply to awards made to
Canadian Participants.
|
46