As filed with the Securities and Exchange Commission on August 21, 2020

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

_____________________

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

______________________

 

SMITH & NEPHEW plc

(Exact Name of Registrant as Specified in Its Charter)

 

England & Wales None
(State or Other Jurisdiction
of Incorporation or Organization)
(I.R.S. Employer
Identification No.)

 

Building 5, Croxley Park, Hatters Lane, Watford, Hertfordshire WD18 8YE, England 

(Address of Principal Executive Offices)

 

The Smith & Nephew Global Share Plan 2020

(Full Title of the Plans)

______________________

 

Smith & Nephew, Inc.

150 Minuteman Road

Andover, MA 01810

(Name and Address of Agent For Service)

 

(978) 749-1000

  (Telephone Number, including area code, of agent for service)

 ______________________

 

Copies to:

 

John Meade, Esq.

Davis Polk & Wardwell LLP

 450 Lexington Avenue

New York, New York 10017

 (212) 450-4000

Kyoko Takahashi Lin, Esq.

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

______________________

 

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer x Accelerated filer ¨
Non-accelerated filer ¨ Smaller reporting company ¨
    Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨

 

 
 

CALCULATION OF REGISTRATION FEE


Title of Securities

To Be Registered 

Amount To Be
Registered (2)
Proposed Maximum Offering Price
Per Share (3) (4)
Proposed Maximum Aggregate Offering Price (3) (4) Amount of Registration Fee (4)
Ordinary Shares, par value of $0.20 per Ordinary Share (“Ordinary Shares”) (1) 5,000,000 $20.41 $102,050,000.00 $13,246.09
American Depositary Shares, each representing two Ordinary Shares (“ADSs”) (1) 2,500,000 - - -
(1)ADSs, evidenced by American Depositary Receipts (“ADRs”) issuable upon deposit of Ordinary Shares of Smith & Nephew plc (the “Company” or the “Registrant”), have been registered pursuant to a Registration Statement on Form F-6 filed with the Securities and Exchange Commission (the “Commission”) on September 23, 2019. Each ADS represents two Ordinary Shares.

 

(2)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (“Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Ordinary Shares that become issuable in respect of the securities identified in the above table by reason of any share dividend, share split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of the outstanding shares of the Registrant’s Ordinary Shares.

 

(3)Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee based on the average of the high and low prices for an ADR reported on the New York Stock Exchange on August 18, 2020, which average was $40.81 and, therefore represents $20.41 per Ordinary Share.

 

(4)Rounded up to the nearest cent.

 

 

 

 
 

INTRODUCTORY STATEMENT

 

This Registration Statement on Form S-8 (the “Registration Statement”) is prepared to register the issuance of a maximum number of 5,000,000 Ordinary Shares represented by 2,500,000 American Depository Shares of Smith & Nephew plc, a public limited company incorporated under the laws of England and Wales (the “Registrant”) that are reserved for issuance upon exercise of options or settlement of awards under the Smith & Nephew Global Share Plan 2020 (the “Plan”).

 

Part I

 

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Form S-8 instructions. The documents containing the information specified in Part I have been delivered to the participants in the Plan as required by Rule 428(b)(1).

 

PART II

 

Information Required in the Registration Statement

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed by the Registrant with the Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

 

(a)the Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2019, filed with the Commission on March 2, 2020;

 

(b)all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant's Annual Report referred to in (a) above; and

 

(c)the description of the Registrant’s Ordinary Shares and ADRs evidencing ADSs contained in the Registrant’s Registration Statement on Form F-6 (Registration No. 333-233881) filed with the Commission on September 23, 2019, including any amendments or reports filed for the purpose of updating such description.

 

All other documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold and, to the extent designated therein, reports furnished to the Commission on Form 6-K, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing or furnishing of such documents, except as to specific sections of such documents as set forth therein.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

English law does not permit a company to indemnify a director or an officer of the company against any liability which by virtue of any rule of law would otherwise attach to him in respect of negligence, default, breach of duty or breach of trust in relation to the company except liability incurred by such director or officer in defending any legal proceeding (whether civil or criminal) in which judgment is given in his favor or in which he is acquitted or in certain instances where, although he is liable, a court finds such director or officer acted honestly and reasonably and that having regard to all the circumstances he ought fairly to be excused and relief is granted by the court. These restrictions do not prevent a company from purchasing and maintaining insurance against any such liability for any such director or officer.

 

Article 146 of the Registrant’s Articles of Association provides:

 

“Subject to the provisions of the Statutes (but so that this Article does not extend to any matter insofar as it would cause this Article or any part of it to be void under the Statutes) but without prejudice to any indemnity to which the person concerned may otherwise be entitled, every person who is or was at any time a director of the Company or any Group Company (as defined in Article 89.2) may be indemnified out of the assets of the Company against all costs, charges, expenses, losses or liabilities (together "Liabilities") which he or she may sustain or incur in or about the actual or purported execution and/or discharge of his or her duties (including those duties, powers and discretions in relation to any Group Company or any company that is a trustee of an occupational pension scheme (as defined in section 235(6) of the 2006 Act)) and/or the actual or purported exercise of his or her powers or discretions and/or otherwise in relation thereto or in connection therewith, including (without prejudice to the generality of the foregoing) any Liability suffered or incurred by him or her in disputing, defending, investigating or providing evidence in connection with any actual or threatened or alleged claims, demands, investigations, or proceedings, whether civil, criminal, or regulatory or in connection with any application under section 661(3) or (4) or section 1157 of the 2006 Act.”

 

The Registrant maintains an insurance policy for its directors and officers in respect of liabilities arising out of any act, error or omission while acting in their capacities as directors or officers of the Registrant or its affiliated companies.

 

The Registrant has entered into separate deeds of indemnity with each of its current directors and officers to indemnify the director or officer, as applicable, as specified in the applicable deed of indemnity, which may provide for indemnification up to the full extent permitted by English law, and will enter into a separate indemnity agreement with any new director or officer.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit   Incorporated by Reference Filed
Number Exhibit Description Form File No. Exhibit Filing Date Herewith
             
4.1 The Registrant’s Articles of Association. 20-F   1 March 2, 2020  
             
4.3 Form of Fifth Amended and Restated Deposit Agreement, dated as of   , 2019, among the Company, JPMorgan Chase Bank, N.A. as depositary, and holders and beneficial owners of ADRs issued thereunder. F-6   99(A) September 23, 2019  
             
5.1 Opinion of Slaughter and May.         X
             
23.1 Consent of KPMG LLP, Independent Registered Public Accounting Firm of Registrant.         X
             
23.2 Consent of Slaughter and May (included in Exhibit 5.1).         X
             
24 Power of Attorney (included on the signature page of this Registration Statement).         X
             
99.1 The Smith & Nephew Global Share Plan 2020.         X

 

Item 9. Undertakings.

 

(a) The undersigned Registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

 

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 

 

(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of London, United Kingdom on the 21st day of August, 2020.

 

  SMITH & NEPHEW plc  
     
     
  /s/ Susan Swabey  
  Susan Swabey  
  Company Secretary  

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of Registrant do hereby constitute and appoint Susan Swabey, Company Secretary, and Anne-Francoise Nesmes, Chief Financial Officer, and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof.

 

IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities and on the dates indicated.

 

Signature   Title   Date
         
/s/ Roberto Quarta   Chairman   August 21, 2020
Roberto Quarta        
         
/s/ Roland Diggelmann   Chief Executive Officer   August 21, 2020
Roland Diggelmann   (Principal Executive Officer)    
         
/s/ Anne-Francoise Nesmes   Chief Financial Officer   August 21, 2020
Anne-Francoise Nesmes   (Principal Financial and Accounting Officer)    
         
/s/ Vinita Bali   Non-Executive Director   August 21, 2020
Vinita Bali        
         
/s/ Baroness Virginia Bottomley   Non-Executive Director   August 21, 2020
Baroness Virginia Bottomley        
         
    Non-Executive Director    
Erik Engstrom        
         
    Non-Executive Director    
Rick Medlock        
         
    Non-Executive Director    
Robin Freestone        
         
/s/ Marc Owen   Non-Executive Director   August 21, 2020
Marc Owen        
         
    Non-Executive Director    
Angie Risley        
         
/s/ Bob White   Non-Executive Director   August 21, 2020
Bob White        

 

AUTHORIZED U.S. REPRESENTATIVE

 

 

/s/ Catheryn O’Rourke
Smith & Nephew plc

 

By: Catheryn O’Rourke, as duly authorized representative of Smith & Nephew plc in the United States

 

Date: August 21, 2020

 

 

 

Exhibit 5.1

 

 

Slaughter and May

One Bunhill Row

London EC1Y 8YY

T +44 (0)20 7600 1200

F +44 (0)20 7090 5000

 

 

  21 August 2020
   
  Your reference

Smith & Nephew plc

Building 5, Croxley Park
Hatters Lane
Watford, Hertfordshire
WD18 8YE
United Kingdom

Your Reference
Our reference
MJMC
Direct line

Direct Line

020 7090 4100

 

 

Dear Sirs

 

Smith & Nephew plc (the “Company”)

 

We have acted as legal advisers to the Company as to English law in connection with the Registration Statement on Form S-8 (the “Registration Statement”) of the Company to be filed with the United States Securities and Exchange Commission (the “SEC”) on the date of this letter relating to the registration of ordinary shares each of US$0.20 par value in the share capital of the Company (the “Ordinary Shares”). We have not been involved in the preparation of the Global Share Plan 2020 (as defined below) and our involvement has been limited to the writing of this letter. We have not been concerned with investigating or verifying the facts set out in the Registration Statement.

 

Unless otherwise defined in this letter, expressions defined in the Registration Statement have the same meanings when used in this letter.

 

This letter sets out our opinion on certain matters of English law as at the date of this letter and as currently applied by the English courts. We express no opinion on European Union law as it affects or would be applied in any jurisdiction other than England and Wales. We have not made any investigation of, and do not express any opinion on, any other law. This letter is to be governed by and construed in accordance with English law.

 

For the purposes of this letter, we have examined:

 

(A)a copy of the Registration Statement filed with the Securities and Exchange Commission on the date of this letter;

 

 

 

SJ Cooke

SM Edge

PP Chappatte

PH Stacey

DL Finkler

SP Hall

JD Boyce

N von Bismarck

PWH Brien

SR Galbraith

AG Ryde

JAD Marks

DA Wittmann

TS Boxell

JC Twentyman

DJO Schaffer

STM Lee

AC Cleaver

DR Johnson

RA Swallow

CS Cameron

CA Connolly

PJ Cronin

BJ-PF Louveaux

E Michael

RR Ogle

PC Snell

HL Davies

JC Putnis

RA Sumroy

JC Cotton

RJ Turnill

WNC Watson

CNR Jeffs

SR Nicholls

MJ Tobin

DG Watkins

BKP Yu

EC Brown

RA Chaplin

J Edwarde

AD Jolly

 

S Maudgil

JS Nevin

JA Papanichola

RA Byk

GA Miles

GE O'Keefe

MD Zerdin

RL Cousin

BJ Kingsley

IAM Taylor

DA Ives

MC Lane

LMC Chung

RJ Smith

MD’AS Corbett

PIR Dickson

IS Johnson

RM Jones

EJ Fife

JP Stacey

LJ Wright

JP Clark

WHJ Ellison

AM Lyle-Smythe

A Nassiri

DE Robertson

TA Vickers

RA Innes

CP McGaffin

CL Phillips

SVK Wokes

NSA Bonsall

MJM Cox

RCT Jeens

V MacDuff

PL Mudie

OI Storey

DM Taylor

RJ Todd

WJ Turtle

OJ Wicker

DJO Blaikie

CVK Boney

F de Falco

SNL Hughes

PR Linnard

KA O’Connell

N Yeung

CJCN Choi

NM Pacheco

CL Sanger

HE Ware

HJ Bacon

TR Blanchard

NL Cook

AJ Dustan

HEB Hecht

CL Jackson

OR Moir

S Shah

Authorised and regulated
by the Solicitors
Regulation Authority
Firm SRA number 55388

 

900464919

 

 

 

 

 

(B)a copy of the Memorandum and Articles of Association of the Company (the “Articles of Association”) (together with the resolutions and agreements filed at Companies House under section 30 of the Companies Act 2006 and its predecessors);

 

(C)the company secretary’s certificate dated the date of this letter in respect of the Company (the “Secretary’s Certificate”); and

 

(D)a copy of the rules of The Smith & Nephew Global Share Plan 2020 (the “Global Share Plan 2020”).

 

For the purposes of this letter, we have carried out in respect of the Company:

 

(A)a search at the Registrar of Companies in respect the Company on the date of this letter; and

 

(B)a telephone search at the Central Registry of Winding-Up Petitions in respect of the Company on the date of this letter, together the “Searches”.

 

For the purposes of this letter, we have assumed:

 

(A)the conformity to original documents of all copy (including electronic copy) documents examined by us;

 

(B)that the statements contained in the Secretary’s Certificate are complete and accurate as at the date of this letter;

 

(C)that all signatures on the executed documents which, or copies of which, we have examined are genuine;

 

(D)that the copy of the Memorandum and Articles of Association of the Company examined by us is complete and up to date and would, if issued today, comply, as respects the Articles of Association, with section 36 of the Companies Act 2006;

 

(E)in resolving to issue the Ordinary Shares, the directors of the Company will act in good faith to promote the success of the Company for the benefit of its members as a whole and in accordance with any other duty, breach of which could give rise to such transactions being avoided;

 

(F)that the names of the appropriate persons will be entered in the Company’s register of members upon allotment of the Ordinary Shares;

 

Page 2/Smith & Nephew plc/21 August 2020

 

 

(G)that (i) the information disclosed by the Searches referred to above at the time each was conducted, was complete, up to date and accurate and has not since then been altered or added to and (ii) the Searches did not fail to disclose any information relevant for the purposes of this opinion;

 

(H)that (i) no proposal for a voluntary arrangement has been made or moratorium obtained under Part I or Part A1 of the Insolvency Act 1986 (as amended), (ii) the Company has not given any notice in relation to or passed any winding-up resolution, (iii) no application has been made or petition presented to a court, and no order has been made by a court, for the winding-up or administration of the Company, and no step has been taken to strike off or dissolve the Company, (iv) no liquidator, administrator, receiver, administrative receiver, trustee in bankruptcy or similar officer has been appointed in relation to the Company or any of its assets or revenues, and no notice has been given or filed in relation to the appointment of such an officer, and (v) no analogous procedure has been commenced in any jurisdiction outside England and Wales in relation to the Company or any of its assets or revenues;

 

(I)that the performance of each obligation under the Global Share Plan 2020 is not illegal or contrary to public policy in any place outside England or Wales in which that obligation is to be performed;

 

(J)that all acts, conditions or things to be fulfilled, performed or effected in connection with the Global Share Plan 2020 under the laws of any jurisdiction other than England and Wales have been duly fulfilled, performed and effected;

 

(K)that the Global Share Plan 2020, the rules of which we have examined, is in force, was validly adopted by the Company and has been and will be operated in accordance with its terms;

 

(L)that a meeting of the board of directors of the Company or a duly authorised and constituted committee of the board of directors of the Company has been or will be duly convened and held, prior to the allotment and issue of the Ordinary Shares, at which it was or will be resolved to allot and issue the Ordinary Shares;

 

(M)that the Ordinary Shares will be issued in accordance with the rules of the Global Share Plan 2020;

 

(N)that the Ordinary Shares, before allotment or issue, will be fully paid up in accordance with the Companies Act 2006;

 

(O)that the Global Share Plan 2020 will be deemed to be an “employees’ share scheme” for the purposes of section 1166 of the Companies Act 2006;

 

Page 3/Smith & Nephew plc/21 August 2020

 

 

(P)that the provisions of section 682 of the Companies Act 2006 will apply to the allotment and issue of Ordinary Shares pursuant to the Global Share Plan 2020;

 

(Q)that the Company has not made and will not make a payment out of capital in respect of the purchase of its own shares which would cause a liability to be incurred by its shareholders under the UK Insolvency Act 1986 (as applicable);

 

(R)that none of the holders of the Ordinary Shares has received or will receive any dividends or distribution which constitute an unlawful distribution pursuant to common law or the Companies Act 2006 (as applicable);

 

(S)that there is no actual or implied additional contractual relationship between the Company and the holders of the Ordinary Shares, except for any contract of employment, the Company’s Articles of Association and the Global Share Plan 2020;

 

(T)that the directors of the Company have complied with their duties as directors in so far as relevant to this opinion letter;

 

(U)that any subordinate legislation made under the European Communities Act 1972 and relevant to this opinion is valid in all respects; and

 

(V)that all acts, conditions or things required to be fulfilled, performed or effected in connection with the Ordinary Shares under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected.

 

Based on and subject to the foregoing and subject to the reservations mentioned below and to any matters not disclosed to us, we are of opinion that the Ordinary Shares to be issued by the Company pursuant to and in accordance with the terms of the Global Share Plan 2020, when so issued, will be validly issued, credited as fully paid and non-assessable. In this context “non-assessable” means that the holder of an Ordinary Share is not liable, solely because he is a holder of an Ordinary Share, for additional assessments or calls on the Ordinary Share by the Company or its creditors.

 

Our reservations are as follows:

 

(A)insofar as any obligation under the Global Share Plan 2020 is to be performed in any jurisdiction other than England and Wales, an English Court may have to have regard to the law of that jurisdiction in relation to the manner of performance and the steps to be taken in the event of defective performance;

 

(B)we express no opinion as to whether specific performance, injunctive relief or any other form of equitable remedy would be available in respect of any obligation of the Company under or in respect of the Global Share Plan 2020;

 

Page 4/Smith & Nephew plc/21 August 2020

 

 

(C)the obligations of the Company and the remedies available to the Company or participants under or in respect of the Global Share Plan 2020 will be subject to any law from time to time in force relating to liquidation or administration or any other law or legal procedure affecting generally the enforcement of creditors’ rights;

 

(D)we have not been responsible for verifying the accuracy of the information or the reasonableness of any statements of opinion contained in the Registration Statement, or that no material information has been omitted from it. In addition, we express no opinion as to whether the Registration Statement (or any part of it) contained or contains all the information required to be contained in it or whether the persons responsible for the Registration Statement have discharged their obligations thereunder; and

 

(E)the Searches are not conclusive as to whether or not insolvency proceedings have been commenced in relation to the Company or any of its assets. For example, information required to be filed with the Registrar of Companies or the Central Registry of Winding up Petitions is not in all cases required to be filed immediately; once filed, the information may not be made publicly available immediately (or at all); information filed with a District Registry or County Court may not, and in the case of administrations will not, become publicly available at the Central Registry; and the Searches may not reveal whether insolvency proceedings have been commenced in jurisdictions outside England and Wales.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name, in the context and form in which it appears therein. In giving this consent we do not admit that we are “experts” under the Securities Act of 1933 or the rules and regulations of the United States Securities and Exchange Commission issued thereunder with respect to any part of the Registration Statement, including this opinion.

 

This opinion is provided to you in connection with the Registration Statement. We have not advised anyone other than the Company (a "third party") in connection with the issue of the Ordinary Shares, and are under no obligation to do so. Nothing in this letter nor the delivery of it to a third party shall create or constitute a solicitor-client relationship between us and a third party, nor prevent us from advising and representing the Company or any of its affiliates from time to time in relation to any matters in connection with the issue of the Ordinary Shares or any related or unrelated matter.

 

To the extent permitted by applicable law and regulation, you may rely on this letter only on condition that your recourse to us in respect of the matters addressed in this letter is against the firm’s assets only and not against the personal assets of any individual partner. The firm’s assets for this purpose consist of all assets of the firm’s business, including any right of indemnity of the firm or its partners under the firm’s professional indemnity insurance policies, but excluding any right to seek contribution or indemnity from or against any partners of the firm or person working for the firm or similar right.

 

Page 5/Smith & Nephew plc/21 August 2020

 

 

Yours faithfully,

 

 

/s/ Slaughter and May 

Slaughter and May

 

Page 6/Smith & Nephew plc/21 August 2020

 

EXHIBIT 23.1

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors
Smith & Nephew plc

 

We consent to the use of our report with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting of Smith & Nephew plc and its subsidiaries (the “Group”) incorporated by reference herein.

 

Our report dated 20 February 2020, on the effectiveness of internal control over financial reporting as of 31 December 2019, contains an explanatory paragraph that states the Group acquired Osiris Therapeutics, Inc. during 2019, and management excluded from its assessment of the effectiveness of the Group’s internal control over financial reporting as of 31 December 2019, Osiris Therapeutics, Inc.’s internal control over financial reporting associated with 2% of the Group’s revenue and less than 1% of the Group’s total assets, included in the consolidated financial statements of the Group as of and for the year ended 31 December 2019. Our audit of internal control over financial reporting of the Group also excluded an evaluation of the internal control over financial reporting of Osiris Therapeutics, Inc..

 

Also, our audit report refers to a change to the method of accounting for leases as of 1 January 2019 due to the adoption of IFRS 16, Leases.

 

 

/s/ KPMG LLP

London, United Kingdom
21 August 2020

 

 

 

EXHIBIT 99.1

 

Smith & Nephew plc

 

 

 

The Smith & Nephew
Global Share Plan 2020

 

 

 

 

 

 

 

 

 

 

Approved by Shareholders at the Annual General Meeting 

of the Company held on 9th April 2020.

 

Table of Contents

 

Contents Page

 

1   Definitions 1
2   Granting Awards 4
3   Before Vesting 7
4   When do Awards Vest? 9
5   What happens when an Award Vests? 10
6   Holding Period 13
7   Vesting in other circumstances - personal events 14
8   Vesting in other circumstances - corporate events 16
9   Changing the Plan and termination 18
10   Clawback 19
11   General 21
12   Overseas sub-plans 24
13   Section 409A 25
Schedule China 26

i

Rules of the Smith & Nephew Global Share Plan 2020

 

1Definitions

 

1.1In these rules:

 

Acquiring Company” means a person who has or obtains Control of the Company;

 

Award” means a Conditional Award or an Option;

 

Award Date” means the date on which an Award is granted under rule 2.4;

 

Business Day” means a day on which the London Stock Exchange (or, if relevant and if the Committee determines, any stock exchange nominated by the Committee on which the Shares are traded) is open for the transaction of business;

 

Change of control” means

 

(i)when a general offer to acquire Shares made by a person (or a group of persons acting in concert) becomes wholly unconditional;

 

(ii)when, under Section 899 of the Companies Act 2006 or equivalent procedure under local legislation, a court sanctions a compromise or arrangement in connection with the acquisition of Shares; or

 

(iii)a person (or a group of persons acting in concert) obtaining Control of the Company in any other way;

 

Committee” means, subject to rule 8.4, the remuneration committee of the board of directors of the Company or a person or group of persons duly authorised by the remuneration committee;

 

Company” means Smith & Nephew plc;

 

Conditional Award” means a conditional right to acquire Shares granted under the Plan, subject to the rules of the Plan;

 

Control” has the meaning given to it by Section 995 of the Income Tax Act 2007;

 

Dealing Restrictions” means any applicable restriction or restrictions on dealings or transactions in securities or instruments imposed by:

 

(i)any rules, statutory requirements, orders, legal or regulatory code, provision or rule or other requirement or guidance (including, without limitation, the Market Abuse Regulation (Regulation 596/2014), the Listing Rules and the City Code on Takeovers and Mergers); and/or

 

(ii)any code adopted or established by the Company in addition or replacement to (i) above,

 

in force and as amended or replaced from time to time;

 

Dividend Equivalent” means an amount equal to the ordinary dividends payable on the number of Vested Shares between the Award Date and Vesting pursuant to rule 5.5, subject to rule 5.7;

 

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Employee” means any employee of a Member of the Group (including an executive director);

 

Expected Value” means the value of an Award on the Award Date using a valuation methodology determined by the Committee, which takes account of the sum of all various possible performance outcomes at Vesting and which reflects the probabilities of achieving different performance outcomes, rather than maximum outcome only;

 

Expiry Date” means the tenth anniversary of the original approval of the Plan by the shareholders of the Company;

 

Grantor” means, in respect of an Award, the entity which grants that Award under the Plan;

 

Holding Period” means the period of 2 years following the Vesting of an Award, or such other period following Vesting, as shall be determined by the Committee at the time of grant and specified under rule 2.4.10, during which rule 6 shall apply;

 

"Listing Rules" means the Listing Rules published by the United Kingdom Listing Authority;

 

London Stock Exchange” means London Stock Exchange plc;

 

Market Value” means on any day not less than:

 

(i)the closing middle market quotation of a Share (taken from the Daily Official List of the London Stock Exchange) on the immediately preceding Business Day or, in the case of an ADR or ADS listed on the New York Stock Exchange, the closing price quoted on the New York Stock Exchange for that preceding Business Day; or

 

(ii)if the Committee so decides, the average of the closing middle market quotations of a Share (taken from the Daily Official List of the London Stock Exchange) or, in the case of an ADR or ADS listed on the New York Stock Exchange, the closing price quoted on the New York Stock Exchange over the immediately preceding three or five Business Days;

 

Market Value Option” means an Option, the Option Price of which is set by reference to the Market Value of a Share on the Award Date;

 

Member of the Group” or "Group Member" means:

 

(i)the Company; or

 

(ii)any of the Company's Subsidiaries from time to time;

 

Official List” means the list maintained by the Financial Services Authority for the purpose of Section 74(1) Financial Services and Markets Act 2000;

 

Option” means a conditional right to acquire Shares granted under the Plan at the Option Price, subject to the rules of the Plan;

 

Option Period” means a period starting on the grant of an Option and ending at the end of the day before the tenth anniversary of the grant, or such shorter period as may be specified under rule 5.2 or by the Grantor upon the grant of the Option;

 

Option Price” means zero, or the amount payable on the exercise of an Option, as specified under rule 2.4.9;

 

Participant” means a person holding an Award or holding Shares subject to a Holding Period or his personal representatives;

 

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Performance Condition” means any performance condition imposed under rule 2.6;

 

Performance Period” means the period in respect of which a Performance Condition is to be satisfied;

 

Plan” means these rules, known as “The Smith & Nephew Global Share Plan 2020”, as amended from time to time;

 

Relevant Review” has the meaning given in the definition of “Review”;

 

Review” means carrying out a review and considering:

 

(i)whether there has been a misstatement of the Company’s financial results (within the regime for “prior period errors” under International Accounting Standard 8), which has resulted in a material overpayment to Participants, which is in the form of Awards under the Plan or otherwise, irrespective of whether the relevant Participants are at fault;

 

(ii)whether there has been an error in determining the size of an Award grant or extent to which any Performance Condition or other condition has been satisfied, or erroneous or misleading data, which has resulted in the Vesting of an Award which would not otherwise have Vested or which would otherwise have Vested to a materially lesser extent;

 

(iii)whether there has been a significant adverse change in the financial performance or reputation of the Company, including corporate failure and/or any significant loss at a general level or in respect of the Global Business Unit or Function in which the Participant worked;

 

(iv)any other matter which appears relevant; and/or

 

(v)the conduct, capability or performance of a Participant or any team, business area or profit centre, if the Committee deems that the circumstances warrant a review,

 

and if the Committee determines that one or more of the circumstances set out in the above provisions are in question, this will be considered a “Relevant Review”. In the case of a corporate failure, references to "Committee" shall include the Company and/or its administrators;

 

Section 409A” means Section 409A of the U.S. Internal Revenue Code of 1986, as amended, and the U.S. Treasury Regulations promulgated and other official guidance issued thereunder, collectively;

 

Shares” means fully paid ordinary shares in the capital of the Company or any American Depositary Shares (“ADSs”) or American Depositary Receipts (“ADRs”) representing ordinary shares in the capital of the Company;

 

Subsidiary” means a company which is a subsidiary of the Company within the meaning of Section 1159 of the Companies Act 2006;

 

Tax Election” means an election by the Participant and/or his employing company or any Member of the Group for a particular tax and/or social security treatment in respect of his Award and/or the Shares he may acquire pursuant to it (which may include a joint election under section 431(1), 431(2) or 430 of the UK Income Tax (Earnings and Pensions) Act 2003 or an equivalent election pursuant to such other tax legislation that may be applicable

 

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to Participants and/or employing companies or Members of the Group situated in jurisdictions other than the UK);

 

"Tax Liability" means any amount of tax and/or social security contributions arising in connection with an Award for which a Participant would or may be liable and for which any Group Member or other person or entity would or may be obliged to (or would or may suffer a disadvantage if it were not to) account to any relevant authority;

 

US Taxpayer” means a person who is subject to taxation under the tax rules of the United States of America; and

 

Vesting”, in relation to an Option, means an Option becoming exercisable and, in relation to a Conditional Award, means a Participant becoming entitled to have the Shares issued or transferred to him subject to the Plan,

 

and “Vest” and “Vested” will be construed accordingly.

 

1.2Rule headings have no legal effect and shall not affect the interpretation of the Rules.

 

1.3Any words following the terms "including", "include", "in particular", "for example" or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

1.4Except insofar as the context otherwise requires:

 

1.4.1words denoting the singular shall include the plural and vice versa;

 

1.4.2words denoting one gender shall include other genders;

 

1.4.3a reference to any enactment shall be construed as a reference to that enactment as from time to time amended, extended or re-enacted; and

 

1.4.4a reference to the Plan or to any agreement or document referred to herein is to the Plan or such agreement or document as amended, restated or novated (in each case other than in breach of the provisions of the Plan) from time to time.

 

2Granting Awards

 

2.1Grantor

 

The Grantor of an Award must be:

 

2.1.1the Company;

 

2.1.2any other Member of the Group; or

 

2.1.3a trustee of any trust set up for the benefit of Employees.

 

An Award granted under the Plan, and the terms of that Award, must be approved in advance by the Committee.

 

2.2Eligibility

 

The Grantor may grant an Award to anyone who is an Employee on the Award Date in accordance with any selection criteria that the Committee in its discretion may set.

 

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However, unless the Committee considers that special circumstances exist, an Award may not be granted to an Employee who on the Award Date has given or received notice of termination of employment, whether or not such termination is lawful.

 

2.3Timing of Award

 

Awards may not be granted at any time after the Expiry Date or before the date on which the shareholders of the Company approve the Plan. Subject to the foregoing, Awards may only be granted within a period of 42 days starting on any of the following:

 

2.3.1the date of shareholder approval of the Plan;

 

2.3.2the day after the announcement of the Company’s results for any period;

 

2.3.3any day on which the Committee resolves that exceptional circumstances exist which justify the grant of Awards; or

 

2.3.4the lifting of Dealing Restrictions which prevented the granting of Awards during any period specified above.

 

2.4Terms of Awards

 

Awards are subject to the rules of the Plan and any Performance Condition and must be granted by deed or in such other form as the Committee decides. The terms of the Award must be determined by the Grantor and approved by the Committee. The terms must be set out in the deed or other document (which may be in electronic form), including:

 

2.4.1whether the Award is:

 

(i)a Conditional Award;

 

(ii)an Option and whether or not it is a Market Value Option; or

 

(iii)a combination of these;

 

2.4.2the number of Shares subject to the Award or the basis on which the number of Shares subject to the Award will be calculated;

 

2.4.3if the Award is an Option, the Option Period;

 

2.4.4any Performance Condition;

 

2.4.5any other condition specified under rule 2.7;

 

2.4.6the date(s) of Vesting, unless specified in a Performance Condition;

 

2.4.7whether the Participant is entitled to receive any Dividend Equivalent;

 

2.4.8the Award Date;

 

2.4.9the Option Price (if relevant);

 

2.4.10whether a Holding Period will apply and if so on what basis; and

 

2.4.11whether the Participant may be required to enter into a Tax Election.

 

2.5Market Value Options

 

In the case of a Market Value Option, the Option Price will not be less than the Market Value of a Share on the Award Date.

 

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2.6Performance Conditions

 

When granting an Award, the Grantor may, and must in the case of executive directors, make its Vesting conditional on the satisfaction of one or more conditions linked to the performance of the Company. A Performance Condition must be objective and specified at the Award Date. The Grantor, with the consent of the Committee, may waive or change a Performance Condition in accordance with its terms or if anything happens which causes the Grantor reasonably to consider it appropriate to do so provided that this does not result in an unfair benefit for the Participant in the reasonable opinion of the Committee.

 

2.7Other conditions

 

The Grantor may impose other conditions on the Vesting and/or exercise of an Award when granting the Award. Any condition must be objective, specified at the Award Date and may provide that an Award will lapse if it is not satisfied. The Grantor, with the consent of the Committee, may waive or change a condition imposed under this rule 2.7.

 

2.8Award certificates

 

Each Participant will receive a notification setting out the terms of the Award as soon as practicable after the Award Date. The notification may be the deed referred to in rule 2.4 or any other document and may be in electronic form.

 

2.9No payment

 

A Participant is not required to pay for the grant of any Award.

 

2.10Administrative errors

 

If the Grantor purports to grant an Award which is inconsistent with the provisions of rule 2 or in breach of any applicable laws, the grant shall not take effect and shall be treated as having lapsed.

 

If the Grantor tries to grant an Award which is inconsistent with rule 2.11, 2.12 or 2.13, the Award will be limited and will take effect from the Award Date on a basis consistent with those rules.

 

2.11Individual limit for Awards

 

An Award must not be granted to an Employee if it would, at the proposed Award Date, cause the Expected Value of all Awards that he has been granted in that financial year under the Plan to exceed three times his annual basic salary from Members of the Group.

 

This limit may be exceeded if the Committee determines that exceptional circumstances make it desirable that Awards should be granted in excess of that limit, but Awards may not be granted in excess of four times of annual basic salary in any circumstances.

 

Basic salary” means gross salary before adjustment to take account of any flexible benefits.

 

Basic salary payable in a currency other than pounds sterling will be converted into pounds sterling at the average of the spot buying and selling rates with the relevant currency in comparable amounts by any clearing bank chosen by the Committee on a date chosen by the Committee.

 

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2.12Plan limits - 10 per cent

 

A Grantor must not grant an Award if the number of Shares committed to be issued under that Award exceeds 10 per cent of the ordinary share capital of the Company in issue immediately before that day, when added to the number of Shares which have been issued, or committed to be issued, to satisfy Awards under the Plan, or options or awards under any other employee share plan operated by the Company, granted in the previous 10 years.

 

2.13Plan limits - 5 per cent

 

A Grantor must not grant an Award if the number of Shares committed to be issued under that Award exceeds 5 per cent of the ordinary share capital of the Company in issue immediately before that day, when added to the number of Shares which have been issued, or committed to be issued, to satisfy Awards under the Plan, or options or awards under any other discretionary employee share plan adopted by the Company, granted in the previous 10 years.

 

2.14Scope of Plan limits

 

Where the right to acquire Shares is released or lapses, the Shares concerned are ignored when calculating the limits in rules 2.12 and 2.13.

 

As long as so required by the Investment Association, shares transferred from treasury to satisfy Awards are treated as shares issued by the Company.

 

2.15Listing Rules

 

No Shares will be issued under the Plan if it would cause Listing Rule 6.1.19 (shares in public hands) to be breached.

 

2.16Approvals, consents and dealing restrictions

 

Notwithstanding any other provision in the Plan, the grant of any Award shall be subject to obtaining any approval or consent required under, and complying with the requirements of, the Listing Rules, the Market Abuse Regulation (Regulation 596/2014), any relevant share dealing code of the Company, the City Code on Takeovers and Mergers, and any other relevant UK or overseas regulation or enactment and any applicable Dealing Restrictions.

 

3Before Vesting

 

3.1Rights

 

A Participant is not entitled to vote, to receive dividends or to have any other rights of a shareholder in respect of Shares subject to an Option or a Conditional Award until the Shares are issued or transferred to, or to the order of, the Participant.

 

3.2Transfer

 

A Participant may not transfer, assign or otherwise dispose of an Option or Conditional Award or any rights in respect of it. If he does or purports to, whether voluntarily or involuntarily, then it will immediately lapse. This rule 3.2 does not apply to the transmission of an Option or Conditional Award on the death of a Participant to his personal representatives.

 

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3.3Adjustment of Awards

 

If there is:

 

3.3.1a variation in the equity share capital of the Company, including (without limitation) a capitalisation or rights issue, sub-division, consolidation or reduction of share capital;

 

3.3.2a demerger (in whatever form) or exempt distribution by virtue of Section 1075 of the Corporation Tax Act 2010;

 

3.3.3a special dividend or distribution; or

 

3.3.4any other corporate event which might affect the current or future value of any Award,

 

the Committee may adjust the number or class of Shares or securities subject to the Award and, in the case of an Option, the Option Price.

 

The Option Price for a Market Value Option to subscribe for Shares may be adjusted to a price less than nominal value only if the Committee resolves to capitalise the reserves of the Company, subject to any necessary conditions. This capitalisation will be of an amount equal to the difference between the adjusted Option Price payable for the Shares to be issued on exercise and the nominal value of such Shares on the date of allotment of the Shares. If, at the time of exercise, the Committee does not resolve to capitalise the reserves of the Company for this purpose then the adjustment under this rule 3.3 will be deemed not to have taken place. Adjustments of the Option Price for an Option, shall be subject to the requirements of Section 409A (if relevant).

 

3.4Malus

 

3.4.1Review of Awards

 

At any time prior to Vesting of an Award or exercise of an Option, the Committee may conduct a Review of Awards, or any individual Award. The Committee may determine that a Review should take place after a Participant has ceased to be an Employee. For the purposes of this rule 3.4, any reference to the "Committee" shall include the Company and/or its administrators in the case of a corporate failure.

 

If there is a Relevant Review and the Committee determine, as result of the Relevant Review, that the circumstance warrant it, the Committee may take one or more of the actions listed below in rule 3.4.2.

 

3.4.2Actions

 

The Committee may in its absolute discretion:

 

(i)reduce the number of Shares in respect of the Award (including to zero); and/or

 

(ii)determine that an Award or any part of it will not Vest or shall no longer be exercisable; and/or

 

(iii)apply conditions or restrictions to the Vesting or exercise of the Award.

 

3.4.3Unjustified, unfair or undeserved benefit

 

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In the event that the Committee determines, after taking into account all circumstances known to the Committee including (without limitation) the financial performance of the Company, any changes in the Company's share price and the performance, conduct and contribution of the Participant, that the amount which a Participant is expected to receive pursuant to an Award in accordance with its terms would result in the Participant receiving an amount which the Committee considers cannot be justified or which the Committee considers to be an unfair or undeserved benefit to the Participant, the Committee may in its absolute discretion carry out any of the actions listed at rule 3.4.2 above in respect of the relevant Award to the extent that the Committee considers appropriate.

 

4When do Awards Vest?

 

4.1Satisfying conditions

 

As soon as reasonably practicable after the end of the Performance Period, the Committee will determine whether and to what extent any Performance Condition or other condition imposed under rule 2.7 has been satisfied or waived and how many Shares Vest for each Award.

 

4.2Timing of Vesting – Award subject to Performance Condition

 

Where an Award is subject to a Performance Condition, subject to rules 2.7, 3.4, 4.4 to 4.6 (inclusive), 5, 7 and 8, an Award Vests, to the extent determined under rule 4.1, on the date set by the Committee on the grant of the Award or, if no such date is specified, on the date on which the Company makes its determination under rule 4.1.

 

4.3Timing of Vesting – Award not subject to Performance Condition

 

Where an Award is not subject to a Performance Condition, subject to rules 2.7, 3.4, 4.4 to 4.6 (inclusive), 5, 7 and 8, an Award Vests on the date(s) of Vesting set by the Committee on the grant of the Award.

 

4.4Dealing Restrictions delay Vesting

 

If, when an Award would otherwise Vest under any rule of this Plan, Dealing Restrictions would prohibit:

 

4.4.1in the case of an Option, the exercise of such Option;

 

4.4.2the delivery of Shares or cash (as relevant) or the procurement of the delivery to the Participant; and/or

 

4.4.3the Participant from selling Shares to discharge any liability to taxation or social security contributions in respect of his Award, where relevant,

 

unless the Committee determines otherwise and, in the case of US Taxpayers, subject to rule 13, the Award shall not Vest until the first Business Day on which all such Dealing Restrictions cease to apply.

 

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4.5Other restrictions on Vesting

 

Subject to rule 4.4, an Award shall not Vest unless and until the following conditions are satisfied:

 

4.5.1the Vesting of the Award and the transfer of Shares after such Vesting would be lawful in all relevant jurisdictions;

 

4.5.2if, on the Vesting of the Award, a Tax Liability would arise by virtue of such Vesting and the Committee decides that such Tax Liability shall not be satisfied by the sale of Shares pursuant to rule 5.7 then the Participant must have entered into arrangements acceptable to the Committee that the relevant Group Member will receive the amount of such Tax Liability;

 

4.5.3the Participant has entered into such arrangements as the Committee may require (and where permitted in the relevant jurisdiction) to satisfy a Group Member's liability to social security contributions in respect of the Vesting of the Award; and

 

4.5.4where the Committee requires, the Participant has entered into, or agreed to enter into, a valid Tax Election or any similar arrangement in any overseas jurisdiction.

 

For the purposes of this rule, references to Group Member include any former Group Member.

 

4.6Lapse

 

To the extent that any Performance Condition is not satisfied at the end of the Performance Period, the Award lapses, unless otherwise specified in the Performance Condition and subject to rule 2.6. To the extent that any other condition is not satisfied, the Award will lapse if so specified in the terms of that condition, subject to rule 2.7.

 

If an Award lapses under the Plan, it cannot Vest and a Participant has no rights in respect of it.

 

5What happens when an Award Vests?

 

5.1Conditional Award

 

Within 30 days of a Conditional Award Vesting, the Grantor will (subject to rules 5.4, 5.6, 5.7, and 11.9) transfer or procure the transfer, including a transfer out of treasury or issue to, or to the order of, the Participant, the number of Shares in respect of which the Award has Vested.

 

5.2Options

 

5.2.1A Participant may exercise his Option at any time during the Option Period following Vesting by giving notice in the prescribed form and manner to the Grantor or any person nominated by the Grantor and paying the Option Price (if any). The Option will lapse at the end of that period or, if earlier, on the earliest of:

 

(i)the date the Participant ceases to be an Employee, unless rule 7.2 applies or the cessation is due to the Participant's death;

 

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(ii)if the Committee so decides pursuant to rule 7.1.2, the date on which the Participant gives or receives notice of the termination of his employment;

 

(iii)six months after the date on which the Participant ceases to be an Employee in circumstances where rule 7.2 applies (or, if the Committee decides, such longer period not exceeding 18 months as the Committee may determine);

 

(iv)six months after a Change of control event occurring under rule 8 or, if earlier, the date six weeks after the date on which a notice to acquire Shares under Section 979 of the Companies Act 2006 is first served;

 

(v)one year from the date of the Participant’s death; or

 

(vi)within thirty (30) days prior to the end of the period referred to in rule 5.8.

 

5.2.2An Option will not be exercised on any occasion if such exercise or the delivery of Shares upon such exercise would be prohibited by Dealing Restrictions.

 

5.2.3Subject to rules 5.3, 5.4, 5.6, 5.7 and 11.9, the Grantor will arrange for Shares to be transferred or issued to, or to the order of, the Participant within 30 days of the date on which the Option is exercised.

 

5.2.4If an Option Vests under more than one provision of the rules of the Plan, the provision resulting in the shortest exercise period will prevail.

 

5.2.5Unless otherwise determined by the Grantor on or before the Award Date, an Option may be exercised in full or in part provided the exercise is in respect of a whole number of Shares.

 

5.2.6The exercise of any Option shall be effected in the form and manner prescribed by the Committee. Unless the Grantor, acting fairly and reasonably determines otherwise, any notice of exercise shall, subject to the remainder of the rules of the Plan, take effect only when the Trustee or the Company (as applicable) receives it.

 

5.3Other restrictions on the exercise of an Option

 

Subject to rule 5.4, an Option which has Vested may not be exercised unless and until the following conditions are satisfied:

 

5.3.1the exercise of the Option and the transfer of Shares after such exercise would be lawful in all relevant jurisdictions;

 

5.3.2if, on the exercise of the Option, a Tax Liability would arise by virtue of such exercise and the Committee decides that such Tax Liability shall not be satisfied by the sale of Shares pursuant to rule 5.7 then the Participant must have entered into arrangements acceptable to the Committee that the relevant Group Member shall receive the amount of such Tax Liability;

 

5.3.3the Participant has entered into such arrangements as the Committee may require (and where permitted in the relevant jurisdiction) to satisfy a Group Member’s liability to social security contributions in respect of the exercise of the Option; and

 

5.3.4where the Committee requires, the Participant has entered into, or agreed to enter into, a valid Tax Election or any similar arrangement in any overseas jurisdiction.

 

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For the purposes of this rule, references to Group Member include any former Group Member.

 

5.4Dealing Restrictions delay delivery

 

The Grantor shall not be obliged to arrange for the delivery of Shares following the Vesting or exercise of an Award, as appropriate, if the delivery, or procurement of it, would be prohibited by any Dealing Restrictions, in which case the Grantor will arrange for the delivery as soon as reasonably practicable after all such Dealing Restrictions cease to apply. Notwithstanding the foregoing, in the case of a US Taxpayer, delivery shall be delayed only if and only so long as the Committee reasonably anticipates such delivery would violate any applicable law relating to dealings or transactions in securities.

 

5.5Dividend Equivalent

 

An Award may include the right to receive a Dividend Equivalent which may be paid in cash or Shares (as determined from time to time by the Grantor with the consent of the Committee). If Dividend Equivalents will be paid to any relevant Participant, the will be paid to the Participant after Vesting of a Conditional Share Award or, in the case of an Option, after exercise, at the same time as the underlying Award is settled. For the avoidance of doubt, the Dividend Equivalent does not include the tax credit.

 

5.6Alternative ways to satisfy Awards

 

Where the Grantor considers it necessary or desirable for regulatory or other reasons, the Grantor may, subject to the approval of the Committee, decide to satisfy an Award by paying an equivalent amount in cash (subject to rule 5.7). For Options, the cash amount must be equal to the amount by which the market value of the Shares in respect of which the Option is exercised exceeds the Option Price. Alternatively, the Grantor may decide to satisfy an Option by procuring the issue or transfer of Shares to the value of the cash amount specified above.

 

The Grantor may determine that an Award will be satisfied in cash (or as alternatively specified in this rule 5.6) at the Award Date or at any time before satisfaction of the Award, including after Vesting or, in the case of an Option, after exercise.

 

In respect of Awards which are to be settled in cash, the Committee may, at any time before the delivery of the cash, decide instead to satisfy such Awards (and any Dividend Equivalent) by the delivery of Shares, subject to rule 5.7. The number of Shares will be calculated by reference to the market value of the Shares on the date of Vesting for Conditional Awards and the date of exercise for Options.

 

5.7Withholding

 

The Company, the Grantor, any employing company, former employing company or trustee of any employee benefit trust may withhold such amount and make such arrangements as it considers necessary to meet any Tax Liability in respect of Awards. These arrangements may include (without limitation) the sale or reduction in number of any Shares or the Participant discharging the liability himself.

 

The Participant authorises the Grantor to sell or procure the sale of sufficient Vested Shares on or following the Vesting of his Award (in the case of a Conditional Award) or on or following the exercise of his Award (in the case of an Option) on his behalf to ensure

 

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that any relevant Group Member or former Group Member receives the amount required to discharge the Tax Liability which arises on Vesting or exercise of his Award, or otherwise in connection with such Award, except to the extent he agrees with the Company or relevant Group Member to fund all or part of the Tax Liability in a different manner.

 

5.8US Taxpayers

 

This rule 5.8 applies to a Participant who is a US Taxpayer.

 

Where an Option, which is not a Market Value Option or an Option subject to Section 83 of the US Internal Revenue Code 1986 (as amended), becomes exercisable, it shall lapse at the end of the Short-term Deferral Period.

 

For the purpose of this rule 5.8, the “Short-term Deferral Period” means the period ending on the later of:

 

5.8.1the 15th day of the second month in the year immediately following the Company’s taxable year in which an Option Vests; and

 

5.8.2the 15th day of the second month in the year immediately following the US Taxpayer’s taxable year in which an Option Vests.

 

6Holding Period

 

6.1The Committee may determine that a Holding Period will apply to an Award during which period such Award and/or the Shares acquired following Vesting or exercise of the Award may not be disposed of, transferred, assigned or have any charge or other security interest created over them save for:

 

6.1.1a transfer by will or the laws of descent and distribution, or a transmission to the Participant's personal representatives, following the death of a Participant;

 

6.1.2a transfer of Shares to a nominee on behalf of the Participant authorised by the Company;

 

6.1.3a sale of Shares in accordance with rule 5.7 or (with the prior agreement of the Committee) a sale of Shares by the Participant (or his nominee or agent) to fund any liability to taxation or social security contributions in respect of his Award; or

 

6.1.4a transfer in accordance with rule 10 or to satisfy a clawback provision in another employee benefit plan or bonus plan operated by any Member of the Group,

 

and any purported disposal, transfer, assignment or charge or other security interest attempted to be made or created by the Participant in relation to the Award and/or the Shares except as listed in rules 6.1.1 to 6.1.4 will be void.

 

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6.2If a Holding Period applies to an Award, the Shares acquired on Vesting or exercise of the Award will be held during the Holding Period by a nominee on behalf of the Participant, provided that the Participant owns the beneficial interest in the Shares, unless the Committee determines otherwise, in which case the Committee will specify the terms that will apply in addition to this rule 6.

 

7Vesting in other circumstances - personal events

 

7.1General rule on leaving employment

 

7.1.1Unless rule 7.2 or 7.5 applies, an Award which has not Vested will lapse on the date the Participant ceases to be an Employee.

 

7.1.2The Committee may decide that an Award which has not Vested will lapse on the date on which the Participant gives or receives notice of termination of his employment with any Member of the Group (whether or not such termination is lawful), unless the reason for giving or receiving notice is one listed in rule 7.2.1 below.

 

7.2“Good leavers”

 

7.2.1If a Participant ceases to be an Employee for any of the reasons set out below, then his Awards will Vest as described in rules 7.3 or 7.4 (as applicable) and lapse as to the balance. The reasons are:

 

(i)ill-health, injury or disability, as established to the satisfaction of the Company;

 

(ii)retirement with the agreement of the Participant’s employer;

 

(iii)the Participant’s employing company ceasing to be a Member of the Group;

 

(iv)a transfer of the undertaking, or the part of the undertaking, in which the Participant works to a person which is not a Member of the Group;

 

(v)redundancy; and

 

(vi)any other reason, if the Committee so decides in any particular case.

 

7.2.2The Committee may only exercise the discretion provided for in rule 7.2.1(vi) no later than 30 days after cessation of the relevant Participant’s employment.

 

7.3Vesting – Award subject to Performance Condition

 

Where rule 7.2 applies, the Award does not lapse but will Vest, to the extent measured in accordance with rule 4.1, as soon as practicable following the end of the Performance Period. In the case of a US Taxpayer, subject to rule 5.4, if the Award is a Conditional Award, the vested Shares or cash must be transferred or issued to, or to the order of, the Participant by no later than the earlier of the date specified in rule 5.1 and 15 March in the year following the end of the Performance Period.

 

However, except in the case of a US Taxpayer, the Committee may decide, in its absolute discretion that the Performance Period in respect of an Award should be treated as ending

 

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on the date of the termination of employment, and that the Award should Vest immediately, to the extent that the Performance Condition has been or is likely to be satisfied (as determined by the Committee in the manner specified in the Performance Condition or in such manner as it considers reasonable).

 

Unless the Committee decides otherwise, the Award should be reduced pro rata to the last completed calendar month, so that it reflects only the proportion of the Performance Period, which has elapsed before the termination of employment.

 

7.4Vesting – Award not subject to Performance Condition

 

Where rule 7.2 applies, and the Award is not subject to a Performance Condition, the Award Vests on the date of termination of Employment or on any other date determined by the Committee. The Award will Vest in full, unless the Committee decides that it should be reduced pro rata to reflect the acceleration of Vesting. In the case of a US Taxpayer, subject to rule 5.4, if the Award is a Conditional Award, the vested Shares or cash must be transferred or issued to, or to the order of, the Participant by no later than 15 March in the year following the year in which the termination of Employment occurs.

 

7.5Death

 

If a Participant dies, his Awards will Vest on the date of death but only to the extent that any Performance Condition has been or is likely to be satisfied as at the date of death. It will then lapse as to the balance. Unless the Committee decides otherwise in its absolute discretion, the Award will not be reduced pro rata to reflect the acceleration of Vesting.

 

The Committee will determine, in the manner specified in the Performance Condition (or, if not so specified, in such manner as the Committee considers reasonable), the extent to which any Performance Condition has been satisfied and the proportion of the Award which will Vest.

 

The Grantor will only arrange for Shares to be issued or transferred to the personal representatives of a deceased Participant if they have produced a grant of representation.

 

7.6Awards subject to a Holding Period

 

If an Award Vests under rule 7.7 or if a Participant ceases to be an Employee, unless the Committee determines otherwise, any Holding Period applicable to his Award will continue to apply up to:

 

7.6.1the date it would originally have applied to when the Award was first granted, in the event the Award Vested under rule 7.7; or

 

7.6.2the later of the date it would originally have applied to when the Award was first granted and the date which is two years after the Participant ceased to be an Employee, in the event the Participant ceased to be an Employee.

 

7.7Overseas transfer

 

If a Participant remains an Employee but is transferred to work in another country or changes tax residence status and, as a result, he would:

 

7.7.1suffer a tax disadvantage in relation to his Awards (this being shown to the satisfaction of the Committee); or

 

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7.7.2become subject to restrictions on his ability to Vest in or exercise his Awards or to hold or deal in the Shares or the proceeds of the sale of the Shares acquired on Vesting or exercise because of the securities laws, financial services laws, exchange control laws or other laws of the country to which he is transferred,

 

then the Committee may decide that the Awards will Vest on a date they choose before or after the transfer takes effect. The Award will Vest to the extent the Committee permits and will lapse as to the balance.

 

7.8Meaning of “ceasing to be an Employee”

 

For the purposes of rules 7 and 5.2, a Participant will not be treated as ceasing to be an Employee until the earlier of when:

 

7.8.1he is no longer an Employee of any Member of the Group; or,

 

7.8.2if the Committee so determines pursuant to rule 7.1.2, he is under notice of termination of employment and the Company does not expect him to continue or commence employment with any other Member of the Group.

 

For the purposes of rules 7 and 5.2, a Participant will not be treated as ceasing to be an Employee if he recommences employment with a Member of the Group within seven days.

 

7.9"Good leaver" subsequently found not to be a "good leaver"

 

If, after a Participant's cessation of employment when the Participant has been treated as a "good leaver" under rule 7.2, it is discovered that the Participant was not a "good leaver" and rule 7.2 should not have applied, the Committee may in its absolute discretion determine that rule 7.1 shall apply instead. In addition, the Committee may in its absolute discretion take any of the actions referred to in rule 10.1.2 below, to the extent it considers appropriate to give effect to the application of rule 7.1.

 

8Vesting in other circumstances - corporate events

 

8.1Time of Vesting

 

8.1.1In the event of a Change of control, an Award shall Vest subject to rules 8.2, 8.3 and 8.8 and, subject to rule 8.7, any applicable Holding Period shall not apply or will cease to apply unless the Committee determines otherwise. The Award shall lapse as to the balance except to the extent exchanged under rule 8.3.

 

8.1.2If the Company is or may be affected by any demerger, delisting, distribution (other than an ordinary dividend) or other transaction, which, in the opinion of the Committee, might affect the current or future value of any Award, the Committee may allow an Award to Vest (and any applicable Holding Period to not apply or to cease to apply). The Award will Vest to the extent specified in rule 8.2 and will lapse as to the balance unless exchanged under rule 8.3. The Committee may impose other conditions on Vesting.

 

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8.2Extent of Vesting

 

Where an Award Vests under rule 8.1:

 

8.2.1if the Award is subject to a Performance Condition, the Committee will determine the extent to which any Performance Condition has been satisfied and the proportion of the Award which will Vest. In addition, Committee may decide that the Award is reduced pro rata to reflect the acceleration of Vesting;

 

8.2.2if the Award is not subject to any Performance Condition, the Award will Vest in full. The Committee may decide that the Award is reduced pro rata to reflect the acceleration of Vesting.

 

8.3Exchange

 

An Award will not Vest under rule 8.1 but will be exchanged under rule 8.6 to the extent that:

 

8.3.1an offer to exchange the Award is made and accepted by a Participant; or

 

8.3.2the Committee, with the consent of the Acquiring Company, decides before Change of control that the Award will be automatically exchanged.

 

Notwithstanding the foregoing, in the case of a US Taxpayer, rule 8.3.1 shall not be applicable and rule 8.3.2 shall only apply if the Committee otherwise determines such exchange would not result in additional taxes under Section 409A.

 

8.4Committee

 

In this rule 8, “Committee” means those people who were members of the remuneration committee of the Company immediately before the Change of control.

 

8.5Timing of exchange

 

Where an Award is to be exchanged under rule 8.3, the exchange is effective immediately following the relevant corporate event.

 

8.6Exchange terms

 

Where a Participant is granted a new award in exchange for an existing Award, the new award:

 

8.6.1must confer a right to acquire shares in the Acquiring Company or another body corporate determined by the Acquiring Company;

 

8.6.2must be equivalent to the existing Award, subject to rule 8.6.4;

 

8.6.3is treated as having been acquired at the same time as the existing Award and, subject to rule 8.6.4, Vests in the same manner and at the same time;

 

8.6.4must:

 

(i)be subject to a Performance Condition which is, so far as possible, equivalent to any Performance Condition applying to the existing Award; or

 

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(ii)not be subject to any Performance Condition but be in respect of the number of shares which is equivalent to the number of Shares comprised in the existing Award which would have Vested under rule 8.2.1 and Vest at the end of the original Performance Period; or

 

(iii)be subject to such other terms as the Committee considers appropriate in all the circumstances;

 

8.6.5must be subject to terms and conditions regarding a Holding Period after the exchange which are considered by the Committee to be substantially equivalent to any terms and conditions of the Holding Period applicable to the Award immediately prior to the exchange, unless the Committee determines otherwise; and

 

8.6.6is governed by the Plan, excluding rule 9.2, as if references to Shares were references to the shares over which the new award is granted and references to the Company were references to the Acquiring Company or the body corporate determined under rule 8.6.1 above.

 

8.7Exchange of Shares subject to a Holding Period

 

Unless the Committee determines otherwise, if Shares subject to a Holding Period are exchanged for shares in an Acquiring Company, for the purposes of this Plan, the shares acquired in exchange will be subject to terms and conditions which are considered by the Committee to be substantially equivalent to the terms and conditions of the Holding Period as it applied to the Shares immediately prior to the exchange. The Participant shall enter into such documentation and/or arrangements as required by the Committee to bring this into effect.

 

8.8Internal reorganisation

 

Awards shall not Vest under rule 8.1 without the consent of the Committee if the purpose and effect of the Change of control is to create a new holding company for the Company, such company having substantially the same shareholders with substantially the same proportionate shareholdings as those of the Company immediately before the Change of control. If this rule 8.8 applies, the Committee may determine that Awards will instead be exchanged for an equivalent award over such shares as the Committee determines appropriate, and the Committee may make any modifications to the Performance Condition(s) (if any) and/or any other condition(s) to which the Awards are subject, as it determines appropriate.

 

9Changing the Plan and termination

 

9.1Committee’s powers

 

Except as described in the rest of this rule 9, the Committee may at any time change the Plan in any way.

 

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9.2Shareholder approval

 

9.2.1Except as described in rule 9.2.2, the Company in general meeting must approve in advance by ordinary resolution any proposed change to the Plan to the advantage of present or future Participants, which relates to:

 

(i)the persons to or for whom Shares may be provided under the Plan;

 

(ii)the limits on the number of Shares which may be issued under the Plan;

 

(iii)the individual limit for each Participant under the Plan;

 

(iv)the basis for determining a Participant's entitlement to, and the terms of, securities, cash or other benefits to be provided and for the adjustment thereof (if any) if there is a capitalisation issue, rights issue or open offer, sub-division or consolidation of shares or reduction of capital or any other variation of capital;

 

(v)for Options, the determination of the Option Price; or

 

(vi)the terms of this rule 9.2.1.

 

9.2.2The Committee can change the Plan and need not obtain the approval of the Company in general meeting for any minor changes:

 

(i)to benefit the administration of the Plan;

 

(ii)to comply with or take account of the provisions of any proposed or existing legislation;

 

(iii)to take account of any changes to legislation; or

 

(iv)to obtain or maintain favourable tax, exchange control or regulatory treatment of the Company, any Subsidiary or any present or future Participant.

 

9.3Notice

 

The Committee is not required to give Participants notice of any changes.

 

9.4Termination

 

The Plan will terminate on the Expiry Date, but the Committee may terminate the Plan at any time before that date in its absolute discretion. The termination of the Plan will not affect existing Awards.

 

10Clawback

 

10.1.1Review

 

The Committee may at any time conduct a Review of Awards, or any individual Award. The Committee may determine that a Review should take place after a Participant has ceased to be an Employee and/or after the Award has Vested or been exercised. For the purposes of this rule 9, any reference to the "Committee" shall include the Company and/or its administrators in the case of a corporate failure.

 

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If there is a Relevant Review, and the Committee determines, as result of the Relevant Review, that the circumstance warrant it, the Committee may take one or more of the actions listed below in rule 10.1.2.

 

10.1.2Actions

 

The Committee may at any time within three years (or such additional period as the Committee may determine in exceptional circumstances) from the date on which the Award Vests (or, if later, within three years of the date on which the Option is exercised) in its absolute discretion use any method to recover an amount that it decides appropriate in light of the Relevant Review, including, but not exhaustively, by directing that:

 

(i)the Shares acquired by the Participant pursuant to an Award, or such number as specified, (net of any tax paid by the Participant which is not refundable) are to be returned as directed by the Committee; and/or

 

(ii)an amount in cash equal to the value of the Shares at the date of Vesting or exercise (as relevant) of an Award (net of any tax paid by the Participant which is not refundable), or such lower amount as the Committee may specify, be paid to the Company or any other person as directed by the Committee; and/or

 

(iii)the Participant sell the Shares acquired by the Participant pursuant to an Award, or such number as specified, (net of any tax paid by the Participant which is not refundable) (whether on the open market or to such person as the Committee may direct) and pay the proceeds of sale over to the Company or to another person as directed by the Committee;

 

(iv)the beneficial ownership of any Shares acquired by the Participant pursuant to an Award, or such number as specified, (net of any tax paid by the Participant which is not refundable) which are held by a trustee (whether as trustee of the employee benefit trust or nominee for the Participant) to be automatically transferred to that trustee without any additional action/consent from the Participant;

 

(v)the Participant’s employing company (or former employing company) or any other Member of the Group may withhold from or offset against any distribution, bonus, payment (including salary, where permitted by law) or grant or vesting of any other award to which the Participant may be entitled in connection with his or her employment or engagement with such entity, an amount up to the value of the Shares at the date of Vesting or exercise (as relevant) of an Award (net of any tax paid by the Participant which is not refundable).

 

Any Shares or cash required to be transferred or paid as determined above, must be transferred or paid within 30 days of the notification to the Participant.

 

10.2Relevant considerations

 

In making its determinations under rule 10.1.1 above, the Committee can take into account any information known to it, regardless as to whether the information relates to events or circumstances that occurred before an Award was made, during the life of an Award,

 

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during the period before and after Vesting or exercise of the Award, the Relevant Review period or any other time.

 

10.3Indemnity

 

If the Committee determines that any amount to be recovered from the Participant pursuant to rule 10.1.1 above is to be recovered on a net of tax basis, the Committee may require the Participant to enter into such deed of indemnity as the Committee may prescribe, in case any tax or social security is refunded or is refundable to the Participant. The deed of indemnity may (without limitation) contain provisions for the recovery of tax and/ or employee social security contributions from the Participant and the process of liaison with any tax authority.

 

11General

 

11.1Investigations

 

11.1.1Notwithstanding any other rule of this Plan, if the Committee considers that rule 3.4 or rule 10 may apply to an Award and/or Shares (as appropriate) and an investigation regarding whether those provisions should be invoked commences or is ongoing in respect of a Participant, then, unless otherwise determined by the Committee, until such investigation has been concluded, the following will apply as appropriate according to the circumstances at the time:

 

(i)prior to Vesting, that Participant’s Awards will not Vest;

 

(ii)an Option cannot be exercised; and

 

(iii)after Vesting or exercise but before the delivery of the Shares underlying an Award, the Shares underlying that Award will not be delivered.

 

11.2Terms of employment

 

11.2.1This rule 11.2 applies during an Employee’s employment and after the termination of an Employee’s employment, whether or not the termination is lawful or in breach of contract.

 

11.2.2Nothing in the rules or the operation of the Plan forms part of the contract of employment of an Employee. The rights and obligations arising from the employment relationship between the Employee and his employer are separate from, and are not affected by, the Plan. Participation in the Plan does not create any right to, or expectation of, continued employment.

 

11.2.3No Employee has a right to participate in the Plan. Participation in the Plan or the grant of Awards on a particular basis in any year does not create any right to or expectation of participation in the Plan or the grant of Awards on the same basis, or at all, in any future year.

 

11.2.4Awards and Dividend Equivalents shall not be pensionable.

 

11.2.5The terms of the Plan do not entitle the Employee to the exercise of any discretion in his favour.

 

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11.2.6The Employee will have no claim or right of action in respect of any decision, omission or discretion, which may operate to the disadvantage of the Employee even if it is unreasonable, irrational or might otherwise be regarded as being in breach of the duty of trust and confidence (and/or any other implied duty) between the Employee and his employer.

 

11.2.7No Employee has any right to compensation or damages for any loss in relation to the Plan, including (without limitation) any loss in relation to:

 

(i)any loss or reduction of rights or expectations under the Plan in any circumstances (including lawful or unlawful termination of employment or termination of employment in breach of contract);

 

(ii)any exercise of a discretion or a decision taken in relation to an Award or to the Plan, or any failure to exercise a discretion or take a decision; and

 

(iii)the operation, suspension, termination or amendment of the Plan.

 

11.3Committee’s decisions final and binding

 

The decision of the Committee on the interpretation of the Plan or in any dispute relating to an Award or matter relating to the Plan will be final and conclusive.

 

11.4Third party rights

 

11.4.1Nothing in this Plan confers any benefit, right or expectation on a person who is not a Participant. Save for any Group Member which employs or formerly employed the Participant, no third party has any rights under the Contracts (Rights of Third Parties) Act 1999 or any equivalent local legislation to enforce any term of this Plan. This does not affect any other right or remedy of a third party which may exist.

 

11.4.2The rights of the parties to an Award to surrender, terminate or rescind it, or agree any variation, waiver or settlement of it, are not subject to the consent of any person that is not a party to the Award as a result of the Contracts (Rights of Third Parties) Act 1999.

 

11.5Documents sent to shareholders

 

The Company is not required to send to Participants copies of any documents or notices normally sent to the holders of its Shares.

 

11.6Costs

 

The Company will pay the costs of introducing and administering the Plan. The Company may ask a Participant’s employer to bear the costs in respect of an Award to that Participant.

 

11.7Employee trust

 

The Company and any Subsidiary may provide money to the trustee of any trust or any other person to enable them or him to acquire Shares to be held for the purposes of the Plan, or enter into any guarantee or indemnity for those purposes, to the extent permitted by Section 682 of the Companies Act 2006 or any applicable law.

 

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11.8Data protection

 

11.8.1Any data protection policy of the group or any Member of the Group and/or data privacy notice that is applicable to Employees will apply to Participants' personal data.

 

11.8.2The following shall apply only to the extent required by applicable local law in connection with the offering and operation of the Plan in respect of Participants outside of the European Economic Area:

 

By participating in the Plan, each Participant consents to the collection, processing and transfer of his personal data for any purpose relating to the operation of the Plan. This includes (without limitation):

 

(i)providing personal data to the Company, any Member of the Group and any third party such as trustees of any employee benefit trust, administrators of the Plan, registrars, brokers and any of their respective agents;

 

(ii)the processing of personal data by any such company or third party;

 

(iii)transferring personal data to a country outside the European Economic Area (including a country which does not have data protection laws equivalent to those prevailing in the European Economic Area); and

 

(iv)providing personal data to potential purchasers of the Company, the Participant's employer or the business in which the Participant works.

 

11.9Consents and applicable laws

 

All allotments, issues and transfers of Shares pursuant to the Plan will be subject to all applicable laws and regulations and to any necessary consent under any relevant enactments or regulations for the time being in force in the United Kingdom or elsewhere. The Participant is responsible for complying with any requirements he needs to fulfil in order to obtain or avoid the necessity for any such consent.

 

11.10Share rights

 

Shares issued to satisfy Awards under the Plan will be fully paid and will rank equally in all respects with the Shares in issue on the date of allotment. They will not rank for any rights attaching to Shares by reference to a record date preceding the date of allotment. Where Shares are transferred to a Participant, including a transfer out of treasury, the Participant will be entitled to all rights attaching to the Shares by reference to a record date on or after the transfer date. The Participant will not be entitled to rights before that date.

 

11.11Listing

 

If and so long as the Shares are listed and traded on a public market, the Company will apply for listing of any Shares issued under the Plan as soon as practicable.

 

11.12Dealing Restrictions

 

The Company, the Board, the Committee, any Member of the Group, Employees and Participants will have regard to Dealing Restrictions when (in each case as appropriate) operating, interpreting, administering, participating in and taking any and all such other action in relation to, or contemplated or envisaged by the Plan.

 

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11.13Notices

 

11.13.1Any information or notice to a person who is or will be eligible to be a Participant under or in connection with the Plan may be posted, or sent by electronic means, in such manner to such address as the Company considers appropriate, including publication on any intranet.

 

11.13.2Any information or notice to the Company or other duly appointed agent under or in connection with the Plan may be sent by post or transmitted to it at its registered office or such other place, and by such other means, as the Committee or duly appointed agent may decide and notify Participants.

 

11.13.3Notices sent by post will be deemed to have been given on the second day after the date of posting. However, notices sent by or to a Participant who is working overseas will be deemed to have been given on the seventh day after the date of posting. Notices sent by electronic means, in the absence of evidence to the contrary, will be deemed to have been received on the day after sending.

 

11.14English language

 

If any documents relating to the Plan or any Award are provided in any language other than English, in the event of any conflict between that version and the English version, the English version shall prevail. By participating in the Plan, a Participant consents to any information relating to the Plan and any Award being provided to him or her in English.

 

11.15Conflict

 

In the event of any conflict between the rules of the Plan and any other document relating to the Plan or an Award under the Plan, the rules of the Plan shall prevail.

 

11.16Severability

 

The provisions of the Plan are severable and if any one or more provisions in the Plan are determined to be invalid, illegal or otherwise unenforceable, in whole or in part, the remaining provisions (and any remaining part of the provision in question) shall nevertheless be binding and enforceable.

 

11.17Governing law and jurisdiction

 

English law governs the Plan and all Awards and their construction. The English courts have exclusive jurisdiction in respect of any claims or disputes arising under or in connection with the Plan or any Award (whether contractual or non-contractual).

 

12Overseas sub-plans

 

The Committee may establish plans to operate overseas either by scheduling sub-plans to the Plan or by adopting separate plans in accordance with the authority given by shareholders. This includes designating from time to time which Employees may be invited to participate in a particular sub-plan.

 

This Plan is subject to any additional terms and conditions set forth and attached hereto as a Schedule to the Plan for the Participant's country. If a Participant relocates to a country included in a Schedule to the Plan, such terms and conditions for that country will apply to

 

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the Participant to the extent that the Company determines that applying such terms and conditions is necessary, advisable or desirable for legal, administrative or tax reasons.

 

13Section 409A

 

13.1.1With respect to an Award granted to or held by a US Taxpayer, to the extent the Committee determines that such Award is subject to Section 409A, but does not conform with the requirements of Section 409A, the Committee may (but is not obligated to) amend the Award to cause the Award to conform with such requirements; provided, however, neither the Committee nor the Company make any representation that such amendment complies with Section 409A or any other applicable law, or that such Award is compliant or exempt from Section 409A.

 

13.1.2

 

(i)Subject to rule 13.1.2(ii) below, notwithstanding anything to the contrary hereunder, with respect to any US Taxpayer, to the extent the vesting, settlement or exercise of an Award may be delayed pursuant to the terms of this Plan, including, but not limited to, rules 4.4, 4.5, 5.3, 5.4 and 11.1, such delay shall apply only if the Committee otherwise determines such delay would not result in additional taxes under Section 409A (if relevant).

 

(ii)Rule 13.1.2(i) shall not apply where the delay of the vesting, settlement or exercise of an Award pursuant to the terms of this Plan is required by any statutory or legislative requirement, order, legal or regulatory code, provision or regulatory rule or other regulatory requirement or guidance, including, without limitation, the Market Abuse Regulation (Regulation 596/2014), the Listing Rules and the City Code on Takeovers and Mergers in force and as amended or replaced from time to time,

 

13.1.3The Plan and the Awards granted hereunder are intended to be exempt from or otherwise comply with Section 409A, to the extent applicable thereto. Notwithstanding any provision of the Plan or any Award to the contrary, the Plan and Awards granted hereunder shall be interpreted and construed consistent with this intent. Notwithstanding the foregoing, the Company shall not be required to assume any increased economic burden in connection therewith. Although the Company and the Committee intend to administer the Plan so that the Plan and the Awards granted hereunder comply with the requirements of Section 409A, to the extent applicable thereto, neither the Company nor the Committee represents or warrants that the Plan or the Awards granted hereunder, or the Committee's administration of the Plan, will comply with Section 409A or any other provision of federal, state, local, or non-United States law. Neither the Company or its Subsidiaries or affiliates, nor their respective directors, officers, employees or advisers shall be liable to any Participant (or any other individual claiming a benefit through the Participant) for any tax, interest, or penalties the Participant may owe as a result of participation in the Plan, and the Company and its Subsidiaries and affiliates shall have no obligation to indemnify or otherwise protect any Participant from the obligation to pay any taxes pursuant to Section 409A or otherwise.

 

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Schedule
China

 

This Schedule to the Plan governs the participation of Participants resident in China. Awards granted pursuant to this Schedule are subject to all of the terms and conditions set forth in the Plan except as modified by the following provisions which shall replace and/or supplement certain provisions of the Plan as indicated.

 

For the purpose of this Schedule, the "Company" shall include any of its Subsidiaries.

 

1Vesting condition

 

An Award will not Vest under the Plan until, among others, the completion of the registration of the Plan with the competent office of the State Administration of Foreign Exchange, and such other regulatory requirements that may be applicable under Chinese law from time to time.

 

2Exchange Control Restrictions

 

2.1.A Participant must:

 

a)not transfer any Shares acquired under the Plan out of the account established by the Participant with the Company's designated broker;

 

b)repatriate all cash proceeds resulting from the Participant’s participation in the Plan, including cash dividends paid by the Company on Shares acquired under the Plan and/or the sale of such Shares (together, the “Cash Proceeds”); and/or

 

c)comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.

 

3Exchange Control Account

 

3.1. The Company may establish a special exchange control account to repatriate the Cash Proceeds in compliance with local law (the "Exchange Control Account").

 

3.2. If an Exchange Control Account is established, the Company may determine that any or all of the Cash Proceeds will be transferred to the Exchange Control Account prior to being delivered to the Participant. Any interest that accrues on the Cash Proceeds that are being held in the Exchange Control Account shall be retained by the Company and may be used, amongst other things, to partially offset the cost of administering the Plan.

 

3.3. Cash Proceeds may be paid to the Participant from the Exchange Control Account in Pound Sterling or in local currency, at the Company’s discretion. If the Cash Proceeds are paid in Pound Sterling, the Participant will be required to establish a Pound Sterling bank account in China so that the Cash Proceeds may be deposited into this account.

 

3.4. The Company is not obliged to secure any exchange conversion rate, where the Cash Proceeds are converted into local currency,

 

3.5. Further, the Company is not responsible for any delay between the date that the cash dividend is paid and/or the Shares are sold, as applicable, and the date of conversion of the Cash Proceeds to local currency and the Participant shall bear the risk of any fluctuation in the exchange conversion rate between the date the cash dividend

 

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is paid and/or the Shares are sold, as applicable, and the date of conversion of the Cash Proceeds to local currency.

 

4Mandatory Sale Restriction

 

4.1. The Company may, at its sole discretion, require the Participant to sell any or all of the Shares acquired under the Plan within 90 days following the termination of Participant’s employment with the Company.

 

4.2. The Company may, at its sole discretion, instruct its designated broker to assist with the mandatory sale of the Shares acquired under the Plan following the Participant’s termination of employment with the Company (including its affiliates) and, in this regard, the Company may authorise its designated broker to complete the sale of such Shares on the Participant’s behalf pursuant to the terms of this Schedule and upon receipt of the Company’s instructions.

 

4.3. The Company and/or its designated broker is not obliged to arrange for the sale of the Shares at any particular price.

 

4.4. Upon the sale of the Shares, the proceeds from the sale of the Shares will be remitted to the Participant in accordance with any exchange control laws and regulations, that may be applicable from time to time, less any brokerage fees or commissions and subject to any obligation to satisfy any applicable taxes or other tax-related items.

 

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